d'albret motion in this case which was the reason for the district court summary judgment decision the district court relied on four different  done by senders employees which allegedly showed that the cells would be alive up to ten minutes following the application of hexing those tests were done you know accordance with carney because protocol ability test were done in the same way under the same protocol one show that the seller killed in fifteen seconds in one show that the seller killed might not have been killed and in ten minutes the court relied on the decide which set of tests was the correct ok let me back up for a minute isn't it true that the problem here is that your expert altered the protocol that it made an agreement to buy both as a purty and the core perhaps for the protocol that was going to be used because he thought that one of the steps in using ice was unnecessary to  needed to do the test and we we of course we were never sure whether the all the material was going to arrive and that even if the mobile lab was going to get there on time so the protocol was meant to cover any places where we took the samples so dr sherman in his experience of thirty five years and i can explain that you knew very well that the immediately adding the solvent to the sample that we took would kill the microorganisms once the microorganisms were dead there was no reason to use ice or shaking because once to my career orca orca organisms or dead  nothing can change the reduced role you can no longer chains so the two point you make about using ice and and shaking is not necessary if the solvent kills the hexane upon contact everything that would on paper for example the solvent that we needed to do that to add to that the microorganisms very likely could not have arrived it in that case we would have used ice keep in mind please in the i it was criticized for using ice and not freezing the microorganisms so even if we wanted to use ice their own experts said that the ice would not have an ice even if we thought it was irrelevant i'm sorry say that again i said you agreed though it would have been a lot easier had your expert just used the ins and followed the protocol even if he thought it was unnecessary and you wouldn't be here right i mean i understand your point your point is that you're as i understand it you're saying there is enough in dish out here to show that his method was such a scientifically viable enough that it least it should have gone to the jury shaking issue right in response to that rejection dr sherman provided a declaration sitting in thirty five years experience as a microbiologist and during those thirty five years he had all sins of the that there is no question applying a somewhat mixture two hundred and fifteen times greater than what was set forth in the defendant's peer reviewed papers would clearly kill the microorganisms and let me back up one moment and say a peer reviewed paper provided by the defendant said he but i microorganisms may still be alive when you apply solvent at a ratio of zero point one percent and that was for a certain kind of mike and organisms is that right or it wasn't that for in certain kind of microorganisms it was a number of different microorganisms right the but the federalist but the district court judge relied on their peer reviewed papers to reject dr sherman says results in those in the peer reviewed papers provided by the defendants if you applied solvent at a one percent level the cells were killed so the argument that dr sherman has been making we provide solvent at a level two hundred and fifteen dollars times greater than what was in the defendant's peer reviewed papers in those peer reviewed papers said that the microorganisms would die at one percent and i ask provided papers it's peer reviewed paper that says hexane is an extremely volatile solvent it dissolves the cell membrane and kills the sounds that's on the papers we provided right the  never stand and i'm just trying to make sure i understand i was trying to figure out which articles you referring to yes ok so the point we're making is dr i mean the district court said relied on that on the defendant's and the fact that we were using two hundred and fifteen times that level of a one percent that the make more it was organised would have been killed immediately that is why we did not use ice or shaking him in there in the past because there was no produced that would corroborate that there was no need to use the ice or that the best evidence is the defendant's own papers where they showed microorganisms were killed in a one percent level and when we had someone it was two hundred and fifteen times that what about  level and that is not proper because you take the measurement and you don't want the reduced level to change as the employee at the sample is stored and then tested later that's why using ice was criticized in the i d c directly criticized that's one major reason why konica had to build a mobile lab to get it close to the point where we took the samples because she's getting the sample and shipping it off to a lab  way that's unprotected would change the the reduced level i think to ask for that claim construction and so i said i'd like to ask you about playing construction so one of the things that you argue is you say that the district court reinterpret interpretation of the claim of the term sealed tank but isn't it fair maybe to say that what the destroyed actually did was look at the term sealed tank and how we interpreted it in the context of the entire cla chocks about extraction in a sealed tank so isn't it most fair to read the district court's construction is being simply an understanding of the entire phrase and light of the federal circuit's interpretation of be in a sealed tank right as defined by the federal circuit and that the meaning of seal tank has defied the federal circuit and then there was the discussion of the one way valve in the two way valve land did you understand what my question is  think that the whole claim phrase says an extraction in a sealed tank and so from that you could say that they just occurred understood that the entire phrase required whole limitation that includes that one term right well your honor he significantly changed the claim construction by adding  a one way check valve that would continually release next it into the atmosphere which is bad for everybody in the plant and then it would get in and then during the filling process but prevent air from entering the tank and like to start the seal tank argument by these are independent grounds for some it's in your view correct yes sealed tank during the entire extraction process which i understand to be multiple hours long i understand that your valve is open for certain period of time at the beginning of that process but then it's closed or why should we interpret this claim and understand it to require that it has to be sealed or in a sealed tank during the entirety of the extraction process when the claim says nothing about integrity well hyla i would say this that we when you happens over a period of time so there's not going to be even one cell microorganism that's extracted completely all of the cells are at some point at the beginning exposed to the atmosphere and then if you look at the more we differ think the reason the whole reason for a sealed tank is to prevent oxygen you want to prevent oxygen from coming into the tank so if your if you're landing oxygen into the tank you're sort of defeating the purpose of having a seal pack it's a little bit like if i have a  pot on the stove and i take the top on and off it's not sealed you know you're not cooking well sealed if you take it on and off you know but if you take it off just for a moment and put it back on you probably end up with the same efficient cooking that you would have had if you just take it off for just a that if if you if you're extracting and we all agree that it starts when things are open so that's we were there are experts in agreement with that that you have your defeating the purpose of the claim if you're  leaving the pot open or the tank open some why are we talking about their who is product to interpret the claim i mean should we be talking about the intrinsic evidence what is the intrinsic evidence to support the idea that it has to be in  talks about protect protecting from an oxidation reaction and i think that's really the only support for having the seal tank limitation and this could actually the plain language of this court's construction is  a lot of cases this court's construction which is you're protecting the contents of the tank from the atmosphere so and that's based on you know the description and this corruption the pattern of example they were talking it's talking about stealing or nitrogen gas so you're using nitrogen gas wire in yard the oxygen act atmosphere where you doing that you're trying to prevent oxygen from getting it tight when it talks about continuous extraction as well and do i discussion of when you recover the coke you ten either through its extraction and or disruption you're trying to protect from an oxidation reaction tank based on and so if you look at column twenty three dollars line twenty it starts a sentence saying the up tain cells were disrupted for two times so it's talking about cell disruption there and then if you go down a few ions to line twenty two or three it says it's sealed with nitrogen gas to obtain a cell disrupted solution and what the federal circuit said and that's the line the key line that it relied in its previous opinion to construe seal tank it says see this is the concern with a pen that is not sealing with respect to solvents it's only with respect the atmosphere and if you look at this passage where you're sealing w nitrogen gas and you'll recall from the previous paragraph i cited it's tell it talking about use the nitrogen gas to seal from the atmosphere and this is the very passage the court relied on when construing seal ten so my point is the whole purpose of the seal tank why they added this during prosecution overcome the prior are was to protect from an oxidation reaction to protect from the atmosphere i'm sorry i don't know where the time you  yes and one other point i want to make is they really say that they stipulated to not infringement on two separate grounds so they did what they call in their brief they call it the timing limitation in the venting but really what we're discussing is what they call the timing limitation and then come looking at paragraph after paragraph thirteen sub numeral twenty two dollars and starting it's really a three d ruling but i think you're just repeating what the court's construction was yes so then you have to look at pay per fourteen dollars where they say paragraph fourteen or fifteen they say we don't agree with the court's construction and for that reason we don't infringe i'm paraphrasing if you have to take the paragraphs in combination and and so are you reading the stipulation then as being putting the  position that if they're right that the instruction in the construction was wrong but it was only wrong with one of the with respect to one of the two points that they disputed that they lose yes they either way they lose even though what they have stipulated to is that we contest the construction not we contest the construction on each separable element of the two elements then that are in dispute dealing with the claim construction and it looks to me like they are simply saying we stipulate that if the district court is right with respect to the plane construction we would lose but that seems to me to be a unitary not binary well if i try to include the support contacts what the actual system does and i think it's clear that if for example if they on the oxygen their argument with respect to the condensor is that that's solvent condenses and it prevents a solvent from getting out into the atmosphere but air can come in and they're come out but their position is that fringes that accused plant infringes simply because it prevents solvent from leaving the plant my recollection the record i can't find it and they reckon now i'm sure you know where it is but that not and it is just want to return to the point that in the end in our system that air can come in and out of the condensers and they have stipulated based on the porch and have the air comes into the tank i believe there's no infringement in the whole should be able to be infringe on that ground law i'll switch to the down rule you out of out you're out of time but you can very briefly address and over i'll just say that there were accidentally other evidence that they submitted other than those articles i guess not the articles but the testing that they had done what about the other evidence including that i can't remember the exact number but the expert and  working in this field for thirty five years and said that he had used a solvent in this way or another had used another micro organisms i think he said thousands of times or hundreds of times i don't recall and doesn't gobert say that one of the things you should look at in determining whether something scientifically reliable or not is whether the expert themselves had used the technique an issue outside of the context of litigation yes for what the district court found  he said in his proper protocol that he was going to use an ice bucket we are expert like handed him an ice bucket in protest and it's no we don't want to use ice bucket so when you take all of the circumstance  don't want to you can use ice to stop it that's hard position is the use it should or the question is whether you can yourself and i mean the point is is that if there's you know i yeah i understand your position i'm just wondering whether given his experience  rejecting the indefinite stiffened you can use solomon but there's a lot there's a lot more to it there's a question of did you mix it did you shake it how quickly does a killer i mean you can tell from our silcock tank arguments there's solvent there but it's not killing them immediately takes a while which is so even they don't want to kill it immediately for purposes of that term so it's not just a simple matter of i think the real question is to solve and kill it immediately such that you don't need ice for the both reduced and oxidize there are two different products right reduced q ten has to be protected from oxidation because you want to recover reduced cute at the end of the process oxidize cute and you don't care about  because you wanted to be fully oxidised the product you can buy cute tend the oxidized version and you can buy reduced to ten which i take every day because it's better so the patent itself describe both condom twenty three dollars where my opponent said that because they're talking about sealing and user and and adding and nitrogen and so forth and that the federal circuit relied on that example eight in this is talking about a pressure homogenize or which uses nitrogen gas to obtain a cell disrupted solution the pressure ho in their appellate brief in the kingdome way case on page twenty four of their opposition brief said and i quote the only use of the word sealed in equipment used for the physical disrupted of fuel cells not extraction and therefore this isolated use is unrelated to the way sealed is used in the claims example eight has nothing to do was