and they just wanted to join those two pieces with no other peaks and the way they did that was place that i'm going to use a regular frame plastic frame for the prime these are regular piece of glass like we've made before but they said but we're going to do is we're going to put in resilient fingers and that would be one here one here maybe one or two here one or two here one or two there and the make the frame with the make the shelf is if you would picture the frame right here and this comes from frame and when it hits the opening it hits these resilient kangaroos and it can't go any further with since fingers are resilient you can push right through the finger if this is the finger here's the frame the fingers go like this they come up as the glass comes up and when the glass passes they come back down again that's an easy way to get the that's an easy way to get the glass in the frame not just moved out how powerless how is your client's structure a simple flights to snap over the glass now it's a latch are opening you do have to get the glass in the glass in the glass receiving channel but you aren't doing any flexing like this and then  locks type as it cools and this is all done in mexico and jet trances they're not asserting infringement in mexico locks tight and as brad into the united states it's completely solid there is no resilient to part of it and then snapped in it the other around what you saw what you saw was twisted you would take a frame and you would twist it like this there and that's that's not that's not flexible fingers that's just just twisting it so you can get the blast in the glass receiving chap you're open the receiving channel so that the glass can go into the to the receiving channel is like this in the patented invention you have to bend it in our invention we can say the same because if you flip it that way it just goes right in finger refers to the relatively resilient finger as it normally exists in the united states as are what they call fingers exist in the united states but it isn't the importance that it that it's relatively re the the patent says that you get the benefit of being able to put the glass in the frame by the resilient fingers but that the fingers remain resilient so that when you put the refrigerator shelf in the refrigerator compartment you have to be careful because they're still resilient and they will not support erode there's us again the claim that says it must retain remain resilient the fact quite the contrary it says it's temporarily resilient no no the claim of the claim says that it seemed relatively resilient finger it says the lower wall including a relatively resilient in portion the it which temporarily yeah if it says this is one of  conclude that the cues structure has that same structural characteristic if if in fact the glass and the plastic are assembled together in the end in that manner in the united states where you're looking at infringement it's undisputed that it doesn't have that characteristic that it's rock solid that that it isn't resilient anymore it's the characteristics that allows it to exist in the united states in its combine form well then you make it into a product by process claim the claim is a product claim and the claim says that the finger is relatively resilient and in the united states it's not relatively resilient and there patentee says in the application he says be sure that you make sure that you take into account that it's still relatively resilient in the refrigerator compartment and therefore you have to use ribs or ledges to make sure that a load that if that if somebody took place outside of the united states and the product was sold in the united states the product that was snapped it together well it depends upon what the claim says this claim says that i relatively resilient finger here and that is a claim requirement and that claim requirement is not met by the single grain shelf because it doesn't have a relatively resilient finger and therefore when jim tron had to test for infringement since they knew it was not relatively resilient they said well we're going to raise the temperature we're going to raise the temperature we're going to double it two hundred fifty degrees fahrenheit this isn't going to make this burning more malleable we can then push the an oven in fact there is no dispute from either jim chart or judge miles that in the united states these these what you call fingers are not resilient at all they will not  what is required by the claim and as a result when it came time for jim trying to prove infringement it couldn't use the excuse product it had to change the accused product by heating it up to one hundred fifty degrees fahrenheit and then say oh well now i can get it in and out but how can they accuse single grain of doing something wrong when judge miles and jim try and say that normal temperatures in the refrigerator there's no infringement there is that what are we to make of that in the in the terms of this aspect of the invention of assembly and manufacturing i mean isn't this really is what's really being claimed here a refrigerator shelf that has as one of its characteristics the characteristic of being flexible at the time of manufacture to enable glass to be easily observed into the french well now you're talking about really a product by process plain and jim sure i'm specifically said well then you have to interpret the claim that me but if you can interpret is a product by process claim as i hear you saying flexible thing in a rigid thing and it's going to get that's exactly what this is all all of this took place in mexico and it is a product by process claim they told judge myles that this was not a product by  parcel process claim we tried the case on that entire basis into court and they all turn around and change into a product process claim is highly prejudicial to what why do you keep saying that we're assuming it's a product by process claim we also reason being green you that it's a product claim with one very unusual limitation in it which the district court construed as being applicable as of the time of assembly obviously you disagree with that and it's not clear why that's a logical reading because the limitation deals with assembly you're talking product you're the definition of the product is ninety percent structural and ten percent structural as assembly is first of all you are i don't argue with you the other thing about this is it's used to make a completely different product the product of the patent has relatively resilient fingers at m b in temperature when it is being used that's why you have to support those pingers in the refrigerator shel is the opposite of that shelf it's made by different process but most importantly in the united states where you have to determine whether or not there is infringement there is no  tron they can't test our shelf we've got our shelf the tier if you can to test for infringement presumably they would test that and they didn't test that say doesn't tell you and you can alter and accuse product so that's not even a feature patent walks like comparing apples and oranges and then they said that jim tried had the research that single bain had the responsibility of proving infringement every single temperature no matter how the shelf is used and that's a wrong statement of patent law they have to prove infringement at the temperature at which the shelf normally exists and that they couldn't do and as a result they change the accused product there's never any justification for changing the product because they are the ones who changed it and unchanged they figure and talks a lot about infringement and changing product to to test for infringement but you can't talk about in front of a problem without first understanding what the claims and understanding how to claim must be construed each ruling that sake of main challenges on this appeal is in fact an indirect challenge to the claim construction below what's wrong with the well your honor the determination analyses and so the question becomes first what is the claimed construction that we're trying to address in our doesn't he his argument is based on the premise that judge myles construction of this limitation was wrong and i don't understand what's why he's not permitted to do that there's no waiver here not a suggestion your honor so he's attacking the claim construction because it's the construction because it's the foundation of his attack well i agree that the claim construction is the core issue here but i would submit that it is not the foundation of it tack by sanka bag in fact saying and in one way or another we seem say isn't this a claim to an apparatus that by the way has the feature at the time of insertion of the glass into the is such that it can temporarily deflect and such bently rebound when glass is being inserted into the fret what that indicates is that you look at the point where the glass is designed to be fitted into the frame and fingers need to be relatively resilient such that they can temporarily deflect and such as subsequently rebound when the glass is being inserted into the fray now saying the bank decided as a matter of  when being inserted or in any such language and all this true that that language is not expressed in the claim it over the clerk looked at the plain language of said that the figure is temporarily deflect and subsequently secure and said that what that relates to is the process that is described really throughout us and that's exactly what the court said and that's what mr newstead said is exactly wrong he said the claim language requires present tense here now in the refrigerator in the united states now maybe he isn't right but you have to help us understand why he isn't right or maybe he is right that's the issue it does mean tain that characteristic in the united states there's no question recited at the end of claim twenty three is present at construction and at all times thereafter when it's in the refrigerator and he's saying well you know you heated up we have this heat process when we're manufactured but we're good and not flexible we were when we were in the refrigerator so in the claim does the flexibility feature extend to the period of time when the self is in the refrigerator i want to be careful not to confuse the infringement analysis and they think instruction analysis but the first question is how does the language in the claim get construed we agree that the relative resilience which is a little different from the flexibility the relative resilience has to be present at all times and is indeed present at all times in these sectors none of what about in the claim is the claim speaks to the relative resiliency being present ryle the finished product the frame with the glass and it is sitting in the federal shelf in the refrigerator three and it says a relatively resilient and edge portions of those relatively resilient and edge portions in the refrigerator not talking about the keys device but is it claiming relatively resilient and it's portions of a shelf in the refrigerator no it is a feature of the shelf as nothing to do with what refrigerator compartment you put these only refers to the time when it's being insert and it only gets inserted what it's manufactured so it doesn't matter well that is one time that it gets inserted the ok are you claiming flexibility when the self is sitting in the refrigerator again i have to emphasize the difference between flexibility  important here maybe i'm missing something but is is you or is the claim divine use is it is the claim to something that's resilient when it's sitting in the refrigerator were without without anything being put into it where is it only resilient when somebody tries to put some of it but it's manufactured it is relatively rizzoli and as it sits in the refrigerator refrigerator that bends it's got a little bit of flex right well that doesn't mean you test it under cold conditions so there's a difference between whether something maintains that characteristic this has the characteristic of having be snap secure and what the court said because these dimensions change based on temperature and so forth the patent talks of the specification the patent talks great the great deal about the dimensions having to be appropriate for to work and say well what the court said is that we assess this when the glass can go into the prey and certainly a manufacturer is when that typically occurs but it can be replicated it is a characteristic of the fingers that they do not lose they maintain that characteristic in the united states and so you're saying that's what's claimed that's correct and that's the construction the floor core dip but if it's flexible in the refrigerator situ stay or if i take it out of the refrigerator on the counter maybe clean or something it still has to be flexible then again your honor i have to be clear in the words here that the claim requires not just resilience but relative resilience flexibility is not in that class or play relative resilience of head but relative resilience is a term of art as used in the climb it is not simply resilience it is not resilience it at every temperature it is resilient it is resilient at the time when the glass i design goes into the frame in the case of sink the bain they have designed their shelf suddenly clean when it goes into the frame that is how you determine the target whether the characteristic of relative resilience is present so it's correct to say that you're claiming in the frame that's what the construction was it only goes in the brain forms and by design that's true now you can test whether that characteristic is present by it or like mr new style was saying you know nobody's going to be taking these things  and that would be the same with the invention that's true and i'm pretty puzzled you seem to be discerning the claim construction you got from the district judge not at all what i'm trying to distinguish is the say that we look only to the time of its original manufacture versus whether it is a characteristic i thought i thought they did a district judge in effect said you only look at the time of manufacture in assembly for purposes of the one disputed claim limitation and you're now saying that no that was wrong what he should have said is that that time and any later time provided that you could apply saying no the district judge couldn't back up your honor very a bizarre circumstance now if if there's any suggestion i am saying that the the district or have the wrong construction you make clear i think he got the right instruction he's got it incomplete you assess the characteristic of relative resilience of these fakers when the glass goes in the front a side has certainly happens at the time of a subway and that only happens once it is by design intended to happen only once that's correct so we are not in any way walking away from that construct and that's really what this whole pattern was about as even mr newstead acknowledged when he got up the idea of the us was to come up with a construction a two piece design that could be easily assembled and that's really the focus of the patent and the the the get hacked if you will on the claim construction is really one that says that this shelf has to be by design something that falls apart under normal use and that is what is on the front of the only claim of structure in that s support in the specification but i wasn't trying to drive who way from the civet there it was just that i wanted to try to focus on the plane construction issue well i did exactly the point in fact tried did not argue it is never argued that the manufacturing process in mexico constitutes infringement so he's saying that is an infringement you're making a completely different shelf and what he's saying now of course relates to say within my time limit the obvious load you have to move a lot you have to use ledges and ripped you look at a case where the patent says nothing at all about he the patent says i'm using relative resiliency to get this in and then i'm supporting it refrigerator and then you have an accused product that has none of that it's completely solid and pieces well it was resilient in mexico well then he says but i'm not asserting in pretty good mexico and you can't get infringement in mexico because it's outside the united states so how can you find infringement o something that's just the opposite of the shelf the tying which is one with brazilian fingers because obviously anyone if they want to join a plastic frame two piece of plastic they just go ahead and do it the problem is in the shop in the refrigerator has to be support so you have to look at this from well why are you changing the accused product to try to find infringement you normally test the accused product as it is you don't change it it in he says it infringes because i changed it so it infringes and the judge agreed that