prosecution history of stop the invention at issue and there be genuine issues of material fact in claim construction well the claim construction analysis ultimately is a question of law but it can be based on factual  determinations so far i don't see our core following that line of press and well ultimately it is a question of law the and i've never seen our court suggest that there were any underlying facts in fact if you are to look there a whole bunch of concurrences and dissents written by judge moore and others saying that there are underlying facts but the court seems to have in bank rejected that proposition yes your honor that the questions of of the genuine issues of material fact do not have to do with the claim construction they have to do with the application of that construction to the use of ice so the invention at issue in this case is a relatively simple device used to dispense fluid and the relevant aspects of that or that one the tube is inverted the other end is put in contact with the target surface the applied force to that surface is what dispenses the fluid through the passageway and the claim construction error that that occurred in this case has to do with the dispensing tip it's referred to as part of the passageway an independent claim one clearly articulate the passageways a separate and distinct structure and the stabilizing support so i'm trying to see how we can get around  the logical progression of in describing this device is that fundamentally it is a dispenser bought the body has a passageway the passageway and the body in the passageway and stabilize and supports all found in claim one and so that the dispensing tip is a structure of certain of the dependent claims and the destabilizing supports are also and all of these elements are centrally different parts of the dispenser bo so what we have in this case is a dispenser body that has multiple points of contact parts or projecting surfaces that are able to engage a target surface level why wouldn't we look at the figures and see stabilizing supports that are clearly independent of the passage way and draw some conclusion from that in our claim construction as the district court seems to have done in a very thoughtful opinion the figures as well as much of the disclosure much of the description in the patent relate to the preferred embodiment and that the this court has repeatedly stated that when you're construing claim terms if you start with the claims themselves and you are not you do not of necessarily draw those claims with regard to simply the preferred embodiments so in claim one that recites that does not fluctuate once you engage it used those two points that distance is fixed and that when you apply it you dispense a certain amount of fluid and as you release the pressure there is a certain degree of suck back that always occurs and that amount of fluid that stays in contact with the surface because of surface tension is what remains and why i always have a problem when we have them demonstrative things like this in  public or is that photo representative of the way the device is actually used on every occasion or is that the hypothetical for how it might be used on one occasion as a practical matter your honor this is how it is generally used now while the as a practical matter well let me generally use you gave us a whole lot of wiggle room there let me ask questions let me be more precise while helena has asserted and the instructions in their product and i believe artfully done didn't talk about engaging only the edge of the disk the fact is that with with the stoppers in which these devices are placed the rubber is sufficiently flexible and the way in which people would naturally use the device that's a very stats the that the actual size of the gets this you have in your legs this is the actual accuse i have several of them of if would you mind handing  holds the dispensing the tube initiated the contact with the surface at the edge of the disc and as force is applied it moves towards the vertical until the second point is engaged at which point it is now fixed in relation to the target surface and the pressure is applied if pressure is applied at only the outer edge of the disc the flexibility of the rubber stopper can oftentimes cause the entire device to and so that why is that relevant larger structure that shone on his eyes because blood blood cells which are much much smaller than the size of this of this opening flow freely through this kind of a needle because that's what's used for that purpose and i return to something you said mr slavitt you said a moment ago there's always some suck back the hat makes a big distinction between devices thanks that have sucked back deposited on the surface is a very small quantity but the patterns talking about at least minimizing whatever suck back there would be right i would say that in seeking to avoid considerable or excessive vitamins what is truly essential for the in device to work that when it isn't gauged it is not sealed against the surface so as to block the flow fluid or because of that undue pressure damage cells so provided that the passageway remains open and as you can see from these figures that the amount of space available for the blood to exit that opening is more than sufficient to not block the flow fluid and to not damage cel which is the pointed portion that goes in to the rubber stopper and so that the dispensing tip while an element of that of certain people and inflames is not a necessary element  and there was also a focus throughout the patent on avoiding contamination and the way in which i understand wholly not to instruct people to use the product would avoid having set to come into contact with the slide that you're suggesting in regular use it frequently does your honor and this was a point that i think was misunderstood in the district court was the contamination is not of the sample the contamination has to do with the contaminating the user so that you want to minimize the amount to which blood is all over the device and a real big mess and so that what i understood from the patent and mean perhaps you could point me in the patent to where i might garner your interpretation of it because i understood it to be more a function of contaminating the sample and i've know you're right because as a practical matter the sample is already in contact with the dispensing device right that comes through it and that the whole reason for the invention is that you're able to dispense fluid without having to remove excuse me why why does the why does the structure there's just close in the definition independent lameness fairly govern the independently well to the extent that it is an example it is it is it is shown as what those those are overriding structures and and to the extent that the only them claim to what isn't in the band how believe that's in the in the written description as well that where those means are discussed it talks about the can yo u and with just the remaining moments of my time if i may disappoint out with respect to the sub grant of summary judgment that the judge had this record found in the court below that the device and gauges at a single point of contact and both in in the record fast from the joint appendix and eight fifty six eight fifty seven three fifty nine the declaration of david would be as well as evident from this figure that was also in the court below but it it does not engage at a single it please the court first if i may i'd like to introduce you to eric peterson vice president of helena and sitting next to him on his right michael dickson of my office who gets the credit for anything fine in the brief that's good is that clearly an unmistakeable e surrendering use of the dispensing tube is part of the stabilizing support at i hereby disclaim so we have to look at the affirmative arguments that were made repeatedly the affirmative arguments were made as to how you get this pre determined about but even before that if i may before the patent examiner first picked up the application to look at a comparison of two figures demonstrates that dispensing tip cannot be a stabilizing support and those two figures are from page thirty seven of the joint appendix which is that i have copies of the two the prior art to focus which was cited by the applicant in figure three you'll see a dispensing tip at the top number twenty six and in figure t you see the drop of blood thirty six coming out of the dispensing fifty now what did the applicant for patton say in the original application still it couches its distinction in terms of dispensing predetermined amounts it does not stabilisation using the dispensing to it does and where does it do that i've got the prosecution page thirty nine they're talking about the folks patent starting at line fifty which that first part talks about the contamination answering judge worst question but continuing on to lie fifty four also because the dispensing tip of the cited device lacks a means to stabilize itself against a target surface right then and there we are told it dispensing tip of the prior art the folds reference never contacts the slide or this the surface that you're applying the blood to and so there is no issue of stabilization at all and  focus now we've got a device in the patent that is focused on stabilization where does robes give us any clear indication that stabilisation was ever in play it's only talking about pre determined amounts of dispensing the fluids right now you have to get to the actual rejection what the examiner said and how i responded correctly or incorrectly the examiner said at page five sixty five that has the dispensing tip and at page one seventy six in the office thirty two thirty two is in the focus document what you might call and the long gated this where as in the helena product we the bottom of the page i'm sorry the top of the page the second line to and upper stabilizing supports element thirty two the first two lines from the from the preceding page look the examiner is saying element thirty two are stabilizing support in the pope's doc of alpha response r and with respect to the physical parts we're talking about the method claim would look at the physical parts in focus the dispensing to thirty twenty six does not touch the target we're not talking about contorting the product as shown i've i think you can draw a very reasonable connection between dispensing predetermined amounts and the stabilization in the inventive device but i'm still looking for this clear and as i said before your honor i'm not sure that attorneys are going to use the words i care by disclaimer when you look at each and every example each and every comment you have stabilizing supports contacting the target and you have a dispensing tip which never contacts the target that's the distinction thing but what do you do with his argument that is why i asked him in the beginning i asked how do you get a pre determined amount with your advice now what's your response to his argument as to how he gets a pre determined now two part response the first part of the response is let in the so the pictures you've seen are correct and accurate that as opposed to this all then you gave me access to the past as opposed to the way the device helena believes actually works let's assume the picture is accurate and that you have two point contact and you had to set up those your your device thank you please proceed supports if you will the physical picture of the picture that you've seen the evidence submitted to the district court picture taken on behalf of the appellant what does the evidence say though about whether or not the dispensing tip in routine use comes in contact with the target surface what kind of evidence exist you have an expert that says i certainly saw it in the appendix holiness instructions in the instructions clearly show a contact only with the dips and not the dispensing tip on the surface but even if i sit here and do that when i do that it jiggles around bends you might this may have hurt you more than help you but i'm just wondering what actual evidence exists in the record how about random amount depends on the manual dexterity of the user and a little uncomfortable getting in to kind of factual distinctions based on things on appeal but but i notice that the device is inserted in the test tube that i have is in a different angle than the one that judge clevenger has one that seems to affect it all as well doesn't it does and at the same page that i cited in hellenism brief your honor talks about the possibility of being off center or off and vertical is another distinction in the way the helena device the accused of ice functions as compared  patented claimed invention and the description which talks about of pointing off center or off vertical force i realize the both parties are treating the dr equivalent issue in this case is that we had  and there was a claim was amended to get around zero and the claim was narrow to get around close and i think it's pretty clear that the claim was narrow and mean there was a limitation added hadn't been there before right argued below in addition to the effect of statement made by the by the district court we believe that the argument based to stop will in the entire and that is that the men meant it was me that to the extent that it narrowed it wasn't with regard to stabilizing support that's correct and so that the reason that you're not doing argument based the stoppel is because even if the district court characterized this amendment that is focusing on a different if that's one of the objectives is to be contamination free on page thirty nine of the record which is the patent column to in response to judge worst questions you'll find it lines thirty nine through forty four that it is contamination of and and an objective of the entire invention now we're not talking about embodiments here to separate the stabilizing supports from the dispensing to yes or it is one of the because it requires a tip of special design to prevent formation of a seal against the target surface which would prevent fluid from exiting or damage cells and then a few lines later where it says also because the dispensing tip lacks means to stabilize itself so it follows that tip does not have means to stabilize itself where isn't it used a vice that tip does have means to stabilize itself it's not saying that the body or the other elements have  stabilized but here it says the tip as a means to stabilize and that would suggest that certain tips which can stabilize and i don't want when i'm i'm not following you exactly you're saying because you distinguish suggesting  that there the sense dispensing tip is not to look stabilizing there or or i should conclude that you have somehow eluded to the notion of the dispensing tip in the context of this invention i want to or to the extent that the the discussion of the prior art and talking about the shortcomings of the prior we're talking about the specific embodiment that flows and then we say that you need a tip of special design in order to operate matter that the device that there is evidence in the case and this has been submitted and despite the district court's finding that it does operate a single point and that those does then result in random outs of fluid sacked small amount predetermined every time when it isn't gauged at those two points as as you see how are you going gauge it at those two points every well your honor in the way in which if a bicycle has two wheels if you instruct somebody to operate it simply by popping wheelies that doesn't make it a device that is a unicycle and here we have a device with two points of contact and to simply instruct there is even with of enough to get blood out were or an excessive amount of pressure or more it would come out initially and then you would simply have more get drawn back yet so that what is what remains on the glass after the pressure and release  suck back on each dispensing movement depending upon how you know your are as a fixed gap the gap doesn't change and so that if you apply enough for the for the blood to just touch or for more that  come out that the surface tension the stickiness of the blood on the surface is what holds the amount they are and the excess is drawn back you have any final comment or simply with respect to festo that the there were t independent bases of distinction that were offered in the in the prosecution of the patent one had to do with dispensing a pre determined amount and the other one has to do with engaging the target surface and that and that with court the district court has said that relates to the pre determined i'm out if anything what would be found from from the prosecution history of stoppel is that it relates to engaging the target