record testimony now the claim does allow compounds as well as elements to be the catalyst so it it's not consequential one way or the other whether we're going to be consequential if the if the catalyst  understanding is that the iron silicon compound only has a single oxidation state no no that's that's incorrect and that the catalyst here according to the record is the iron that is it here to the outside  process be it's if i understand the honest crook question correctly the the iron always has multiple oxidation states it is in this case stop right here to the silica abrasive before the polishing amicably attached it is chemically and physically attached as i understand and once it's a ten there's only a single oxidation no that's not correct your honor it's not there's no requirement to chang column you talk about the catalysts must be able to shuffle electrons meaning that in the composition it's going to have to have multiple states in the composition because it shuffling it's the catalyst well if you're shuffling electrons that means you're losing one moving to a different state right not through the catalyst not through that not necessarily pre calculus must be able to shuffle electrons from the metal to the brief out kept like primes moved from the metal to the oxidizer hydroxy matter but that's and maybe i'm not understanding the chemistry here but i thought that's because the electron was moving the claim certainly don't require that and the shuffling of electrons da nanomaterials products naysay it works to shuffle electrons from the metal to the other what why do you claim it if what you're saying is correct and at least one iron catalyst the answers for catalyst of the iron group you know that the section of the periodic table that has the same characteristics as i iron based on the record if you say that in your claim based on the record your honor the inventors could have done that and as long as the ira was acting as a catalyst which in this case there's no dispute that it is that the multiple oxidation states that's what the inventors were working you had could have done that but you didn't we did not why don't we hold you to what you did which suggests that the composition meaning when it's in the composition it's going to have multiple oxidation states shuffling electrons one state to another which you also say in your specification halogens alkaline metals don't at catalyst but they don't have multiple oxidation states the inventors claimed what they were working with based on the record the prior art showed no chemical mechanical polishing slurry with a catalyst at  in the class including iron and there are there are including in the class that could have been claimed it could have been claimed the way it was claimed the wish to claim the catalyst of all all catalysts within the and some do and some don't it is not a functional limitation but in the claim the claim does not say changing oxidation state the cheapness specification ever since changing oxidation state during prosecution this was treated by the iron compound you'd have to assume the iron compound did not change oxidation state within the composition but the claim doesn't require that and all that was required as that the catalyst in the composition you're going to draw a distinction between you can have multiple oxidation states even though there's no change of oxidation states within the within the or absolutely or absolutely that's the critical distinction that's the critical issue in th in the opposition and the claim doesn't require that in this court's precedent says if there isn't a function re cited in the claim you don't import it into the claim and that's respectfully what the district court did here  you remove that functional limitation and give the claim the plain meaning as we say and we consistently argue throughout the case then infringement is undisputed at least as to the true eight patent but your honor it's hit on different has a different oxidation rate also right i believe that's true i mean that's one of the elements on the on the element chart as ok in the prosecution history  there was never a distinction made between the prior art saying that that there was a catalyst in the prior art but it did not have multiple oxidation states it was this ascension was there was no catalyst at all in the in the so that that is the critical stage there was never any disclaimer and and based on the record there actually is no prior art showing a catalyst at all in a chemical mechanical polishing composition materials expert witness at trial and there was he was asked what is the catalyst in the in the us and in the composition and he said it is the iron on the question this is one five one one five one five where does he say it's at the top of the page question again what is the catalyst in the da now says for answer the actual catalyst is the iron three plus that's iron in the plus three oxidation is the active center that is anchored to the well but the second sentence seems to suggest it's the compound there is another statement that a one five three or six again dr thomas and there was a reference to the statement that the an enema trails had made in one of its patents and the question was does that describe the particles in the d a nano thirty six hundred and thirty seven hundred slurries answer it certainly describes essentially part of the action of the iron catalyst on give mr dunn are an extra two minutes he needs to use it stoner has ignored is the language right under what he read one one five seven it is in my opinion it in my opinion cannot or during this process does the aren't replies chains oxidation states it testimony that when the iron is bound to the silica and it is bound to the silica it cannot change oxidation states that testimony is not only in the page i just read but on one six four one six and one six three nine two moreover there is testimony i'm contradicting testimony that the shuffling electrons statement in the column five of the two eight and that cannot take place unless the iron or the catalyst can change oxidation states in the context of the c m language says it may be in a section which talks of description of the current environment but it starts out the chemical mechanical composition of this invention and then it use the words must it must be able to shuffle electrons and there is plenty of case law on the subject that when you have statements like this even when it's in a section called the preferred environment nevertheless that's the invention kenny functional aspect in a claim in a composition claim your are you importing a function into a composition calling your honor i don't know about importing i don't think i'm importing anything i think the claim language dictates that it is a function well and as we read it is as he suggests is a property you know you get from the class of  on a one four six zero one at the pretrial conference on june the seventh two thousand and ten the court asked there was a debate as to what the claim meant so the court says so the multiple oxidation states only relate to the context of the c m p mr turan who is cabot counsel that's correct your honor and that is quite clear from the claims themselves every one of the claims that we will be presenting in this trial begins with the language a chemical mechanical planar ization composition the court that answers it so at this hearing they conceded the very point that is being debated today now as to it being a functional composition my recollection of the cabbage grapes as they cite cases for the proposition that there are times when you can include a functional aspect oxidation states so i would suggest that their argument about functionality is a red herring in this case and their argument about what this claim covers and doesn't cover is also a outside not only outside of c m p d but outside of the combination with silica it has multiple oxidation states but this case is all about in the context of c m p and that is the court's claim construction and they have acknowledged that in that context if the district court's construction was correct then we prevail on the ultimate question of infringement blue thirty six note sixteen is where they say that i submit that not only do the claims themselves as admitted by mr turan i dictate this result but i submit that the spec referring to the shuffling language that chief judge rater referred to also dictates that result and i suggest that the prosecution history dictates as a result they had multiple references which were rejected the crane rejected on these references under one zero two grounds and those references disclosed every element of the claims in the two eight pounds what was their answer their answer was a functional answer it was not that this doesn't have multiple oxidation states they couldn't say that and they couldn't say it because the references had the iron or the silver or whatever whatever the well at merrill or potentially kind of american be in solution so in that context it could states how do they distinguish it they distinguish it on the ground that there wasn't the right concentration of the meadow to act as a catalyst that's a functional argument that basically undermines their argument that you can't make functional arguments that's a prosecution mystery finally they also distinguished these similar references in the trial on the ground same ground that functionally it couldn't claim construction in this case now in the few seconds i have left how can i say i have more than a few seconds but as i've been told before i don't have to use all my time so i may not i there's a waiver issue in this case  feeling from the original claims let me do my best to answer that question the point i'm making there are two points here one i think we should win regardless of waiver but i also think there's a good waiver argument here and here it is  knowledge that earlier on before that pretrial conference they in fact made the charge argument they're making today that they argued that and we don't dispute that but at the preacher our conference june seventh two thousand and ten taking the position that the mouth of oxidation states has to take place outside the context of the c m t the answer was no your honor and then the judge repeated it multiple times and to counsel not only one of the counsel but their chief counsel said your honor we're not taking up position and then they said i'd like to think about it and the judge says don't think about it well don't design one for six o three don't come back to the court and make the decision now i'll do my best is the answer not to come back your honor i think we can live with this construction mr stoner it's fine your honor the court it's fine thank you the next day so as of this moment intention that they're reserving their right i have no idea what happened to that paper i have no idea whether the judge considered it we didn't considered i just don't know anything but i submit they never recanted their statement that the claims between having this the search for a waiver that's followed up with the written submission or an issue is reserved for appeal be you have any case law that would help us with that your honor this is such an unusual situation for us and i cannot give you a case with the fact that unlike this against us all i'm saying is the judge says don't come back this is it i want your decision now right before the judge i submit and moreover they said the claim dictates that result i submit that the next day a written paper does not undermine that particularly which they didn't recant their statement that the claim dictates the result you believe bernstein was really held to raise the claim construction issue at th initial morcombe hearing insufficient you don't have to reiterate your objection at the the short contrary your honor in the abstract that is true but it's true only in the abstract and the reason i say that is that much happened between the early the mark and the mark when a ruling did not rule on multiple oxidation stings it ruled on catalyst after the market hearing there was exchange summary judgment papers and  definitions evolved without the triage conference the judge realized that they were taking a position that was incompatible with his view of what the what the claim should mean and that's where they made their statement they took their stand in response to the judge's question don't come back they construe the claim as being requests requiring our construction and i say that the next day they can't take it all back in or in a paper oral conferences in front of a judge with the pressure on then we can find it difficult to want to disappoint the judge who's going to preside over the rest of the case in those pressure situations we might say one thing and then a reflection wish to preserve an argument doesn't that seem like the more responsible legal position to take your honor if they had taken that position the next day and that we recant our statement that the claims require it i think that might be a more compelling position the answer is i've given you our position on this issue pretrial conference trying to craft the jury instructions reflect in the court's prior markman rulings we are not revisiting claim construction issues we're trying to come up with a claim construction ruling or a jury instruction that reflected what the court had already ruled and we told the court that's what we were doing and this is all the court said the multiple oxidation states only relate to the context of the scene p it is not a short and referenced what we're arguing today they'll do it is every single claim we are asserting begins with chemical mechanical publishing's laurie and so every element of that claim relates to that context this was a question about infringement proof d n a not a materials had suggested to the district court that we were going to ignore the court whether a compound with an iron in it can have multiple oxidation states even if it does not change oxidation state and i think the specification addresses that in column five it says preferably the catalyst is chosen for metal