simply a layer that contains the pattern nothing in the ordinary meaning of that term narrows it nor does any of the surrounding claim language which simply requires that the image in layer is used to form the pattern  something that at least some in some environments the pattern layer is not the immediate result of patterning under the construction that you don't challenge the term same argument does not depend on there being a separate in body one disclosed in the specification of an underlying or you're position is that if you take the imaging layer and you put the mask on and you irradiate it and then a whole bunch of stuff melts away in one version or hardens in the other version that the immediate result of that is the swiss cheese of an imaging layer and that can be the pattern layer but pieces with cheese does it not so the full limitation is patterning the image in wire and i think this is where the confusion is on the agree construction some of the positions you're on are is right patterning the image in layer the parties have agreed that's the first piece of swiss cheese but that's not the end of that limitation there are many piece of the limitation is to form a pattern layer right that's why i asked what yours yours is is not the immediate result of the irradiation you want to take the first pieces with cheese i'm sorry that the metaphor but it seems useful to mate tell me if it's wrong and create another piece and that other pattern in imaging layer to form a pattern layer the district court affectively wrote to form as an active verb forms but the claims don't say that the claims do not say the pattern in an imaging l where in the patterning forms the image of the patterned layer instead of says to form i think the analogy we used in our brief was reading case law to form a legal opinion well that is a broader and more encompassing in the description of the prior art and then one if i remember right toward the end that expressively referred to and get nominee as my swiss cheese metaphor after you've made the first slice you use  etching what chemical or other techniques to create a second to replicate the pattern of the first piece of swiss cheese in another why would we not take those two passages as indicative of essentially what is not part of the claims namely some reference to steps past second piece which is in column twelve mentions that again the the underlined layer can be pattern use in that speaks of swiss cheese and there's no reason to exclude and typical of the typical lithography processes of doing the radiation and development and that action and then doing that effectively a second time this plan is about what's called double exposure lithography and can use priorities are here's what our invention is not and here's what our invention is there's there's no language indicating that the present invention is limited to the imaging l layer can be formed by an entirely different process well the both since pattern and pattern in the parties have agreed it is exposure and development and so in both in both steps exposure and development has to happen really the question is is that the end of the claim limitation or can there be additional steps to create a patterned layer that lies underneath the layer that's been exposed and develop and so exposure in development has to happen for both the first image in liar and the second one the question then for each of them is that's not the end of the claim limitations as to form a pattern liar and a specification of the cases that can include things like action i don't think you answered my question and sure i mean the claim i'm looking at a flame war and i think it's representative as a park talking about forming it using a first image in layer with the first pattern of former first having process in your view or can they use well being the first part where you i guess run the light through the mass and get a pattern and then the second can be when you use that pattern  so they can be different in the meat i try to explain to me maybe trying my hand so use that i'm trying to figure out whether the first and second pattern have to be formed by the same process or you think they can be formed by different process because i know it goes on and then it says the first second and the first four are combined to form a single pattern like right i mean that's where it seems to be talking about a different kind of technical stuff the first two seem to be parallel steps they are they both reference pattern in the imaging layer to form the pattern layer and the question is that to form the pattern layer both require under the great construction of patterning and imaging layer exposure and development so for that first one there has to be exposure and development for the second one there has to be exposure and development the question is is that with the claims closed when he mentions to form a pattern layer and to form could be exposure and development in addition to action for the first pattern or not in addition so that's how they could be different but they both as a necessary input have to have exposure and development of the image in line or under the agree construction trauma mentioned in column one mentions you have an image in layer the swiss cheese is what's called the pattern photo resist layer and then there's the underlying layer to the pattern and our view is that any of the layers that contain that pattern whether it's the pattern photo resist layer or the underlying layer that can constitute a patterned layer because the claim uses the term to form and the specification doesn't have any ok wait i think you're finally getting to what i  it so you think that underlying layer that can be the second pattern player yes and set of being the final stop where the two petter layers r r or a single or are there still has to destruction your honor so the district court held a marksman hearing resolve this issue in a market order there was no proceedings on summary judgment no evidence presented to the district court after the claim of stretching came down the parties entered into a stipulated judgment so we don't have anything in the record that tells us intuitively why under this clicks construction the accused products do not infringe are we doing the stipulation so on in the stipulated judgment which is on j thirty nine on a paragraph five specifically what the defendants do is they use an intermediate layer so there is the initial on appeal and that's what paragraph five mentions that we that what d s s accused was a layer under underlined that first amendment lawyer it and you're into a bit of time but let me just ask you one more question do you think that claim one in particular covers i don't believe so so the positive flavor negative flavor has to do with what's so it's the pattern is my and positive tone is that the exposed portion dissolves or the patter with look like my hand coming up a negative time of being at the unexposed portion dissolved in my hand coming down there's nothing about exposed or on exposed portions in the construction there's mention of stuff material that lays outside of the pattern but there isn't an often the case i'm going to ask you about something you just said that your colleague is going to talk about because it's more on my mind so i hope you're prepared the claimed differentiation argument y understand the way of saying that claims four and five are not redundant because they're positive tone but i don't understand that if entry which seems to require the dissolution of the irradiated parts not the hardening of the irradiated parts so i think your honor with respect to the agreed upon construction both parties agree and you heard coun for d s s state that it is a gnostic as to whether it is positive or negative to explain how that's possible given and i could just be confused but how is it possible given the definition of a greek claim construction of the term patterning because i think that is a function of what the pattern is when you have a pattern with hard places or glass or what have you and then open spaces where the radiation can get through in one case where you have the positive tone and the radiation come down and you radiate that and softens it and dissolves it off the negative is simply the reverse of that so when it's when the plane construction talks about laying outside of the pattern that's simply talking about whether you're dealing with positive or negative as to what is outside of the patter so the tone affects whether or not it is the the parts that are subjected to the radiation that are out pattern or whether it's the parts that are not subjected to radiation that are outside after so both parties in coming up with this construction for the district court were endeavoring to provide a construction that would cover both situations as to tone and then claims four and five covered the specific situation where it is the exposure to the radiation and that is specifically a reference to a positive home system not to the negative tone system and there are no specific claim referring to essentially counterparts to four and five but referring to the negative tone no i don't i don't believe so your honor but the claims four and five in terms of the exposing that is a reference to should be a font of non infringement because there was simply no error in the district court's construction of outer layer that is because number one the plain language of the claim the natural reading of the claim language supports that construction present participle it is the active verb it is what is being done what is being done to to an object the object is the imaging layer so i am doing something presently to the image in layer two form is of that in the natural language of it supports it but but certainly the agreed construction makes it abundantly clear because the point is if it washed pattern a first emmy lawyer on something other than you pattern the imaging layer that forms the pattern layer you stabilize it you form a second patterned layer that then is consolidated into a single patterned layer and then after that what's done is you use that if you wish it's not claimed but you use that to then at something in an underlying layer and the specification your honor is very clear that the pattern layers or the portions of the imaging layers that remain after patterning the exclusive use of that phrase pattern layer in the specification used is used solely and exclusively to describe the imaging layer after pattern it is the imaging layer that resists material so it is one example your honor is photo resist that can be positive or negative tone but there are in the specification described additional materials besides photo resist resample poly in that can be a kind of radiation sensitive material the parties agreed below to a stipulated meaning of the imaging layer and it's essentially a first imaging layer is the first layer of photo resist or other radiation sensitive material so we can the other things besides  resist the to resist being a common one but not the only one and that's why claims four and five are not redundant with claims two and three and that is one of the reason recent that is certainly one of the reasons that it's not but you haven't claims four and five because which again separates it from claims four and five because you could have positive poly in that you could have positive thought a resist you could have other positive radiation sensitive material so with respect to the the specification again driving the mean here as i alluded to not only is the phrase patterned layer exclusively used to describe the imaging layer after patterning but the specification goes on to say that the patterned layer when it's describing how it's formed what it describes in terms of how it's formed is it says that you put it into radiation and you develop it and that is what forms the patterns layer and that's a consistent usage in the specification to say that it is the radiation and development of the imaging way or that forms the pattern layer with respect to the agreed upon construction where the agreed upon construction was essentially very consistent with what is in the specification saying that you essentially have your imaging layer you then exposed to radiation you then develop it in a developer and the parties agreed and it's not challenge on appeal but what that there's an additional clause there for the construction when you do those things you quote thereby form the pattern portions and spaces of the imaging layer so what the parties agreed to was that the patterning of the imaging layer is driving is immediately creating the pattern layer the district court found that that phrase there by forming the patent portions and spaces that that is a reference to the claimed pattern layer so you have this immediate creation of that that patterned layer by development failures on d s s art that prevent it from now challenging the district court's construction below first the s s agreed to the district court's construction it did raise an issue regarding how that construction would be applied but it did not challenge the district court's construction it never asked the district court to modify its construction and it at no point urged the construction it had originally sought in its briefing this is no different to what happened in the solve a case construction and that in its view the district court's construction adequately captured what it was arguing on the application of the construction that's exactly what happened in this all makes what's mcabee the s s wanted to know if the structure that the district court had issued could be read on an underlying layer that the argument they raised was one of application not want to claim construction and the district court that clear it could not be district court case had proceeded you don't think that this would have presented a cheat up and zero to micro issue where it was perfectly clear that there was no dispute about the nature of the accused products and the only dispute was about the scope of the claims whether you call it interpret ing certain words or not we think the case is not a no two micro issue your honor because we're not disputing that there w below about how the construction would be applied to micro did not present the issue of whether one party had consented to the district court's instructions that issue is expressly presented in the solomon case will consume to you but i c how only it should be construed the district court declined to construe it the difference is the solve a case where the parties have a dispute over the term isolating the district were invited reading on the issue so all day was arguing that isolating should mean permanently isolating but in its briefing expressively stated that it agreed with the district court's construction and then submitted five additional pages of briefing arguing about how that construction should be applied this court said that because it's all they had agreed to the construction and not asked the district or to act to change its construction and it never saw the permanently isolating construction that it was now advocating on appeal it could not challenge the district courts construction appeal but the second the complaining party must present an alternative construction on appeal and that is the second aspect of the essence of a long legal and they seem to me they are making a nuanced distinction here on why i think that they're making an argument about application of the construction and their opening brief d s s presents the issue as whether or not the district court's claim construction excludes and accused instrumentality and asked this court to give an instruction that would allow them to capture an underlying the claim construction that they're offering to eat the insertion of the words immediately or indirectly form immediately or indirectly but that i had i searched through their their briefing to try to identify a place where they could you have any doubt about that's what they meant been in several times they describe the construction as they wanted to cover an underlying layer they state and places that it should refer to a pattern imaging layer the same pattern in the imaging where the same pattern in the mask i'm not quite sure what exactly the construction is and if the s s had presented this court with the formulation of its construction it's not entirely an academic exercise we would then be able to talk about how that construction fits within the specification of the intrinsic record but as any additional questions thank you for your argument me and the construction of patterning an image in layer that we agree to below is only patterning an image in layer and everyone agrees that that phrase that upon development there are pattern portions and spaces of this the passages that to me are most significant that column one in the column twelve where where where when there is talk about creating this pattern in a layer immunity thank you your honor you know as i read the specification there's really two kind of ways to slice it either when the way that we agree to pattern imaging layer to form a pattern layer those two fortune spec and the words to form indicate that that limitation is broader than is judged clevenger mentioned pat with the on first blush without the reconstruction patterning imaging layer to form a pattern layer both of those portions no minimum asked very early on on this waiver issue this issue the scope of the claims is as clear as they want the pardons are disputing whether the imaging layer material is limited adding layers limited that imag it can have a pattern underneath the core resolve that an eight page claim construction order and the defendant's argument is that because the s s agreed to the words of the court's proposed construction which didn't answer the issue because the court half of ours and half of theirs and put it there so i took ours a layer contained in the portions and spaces of the imaging layer and superimposed those that somehow the s s is waived that are not she'll be cited out to my car and the other cases per district that simply say that as a district court on notice what your claim construction position is you know you have to object to the jury instruction to get up on appeal and make those arguments did you offer a specific formulation of an alternative claim construction that you would have would prefer the district court to have adopted we did in our so we're kind of in a tight bind on this because the s s agreed to the words of the court's client construct and then the court sort of issued a construction of a that construction but can also live with the actual words that the district where used in the claim construction order but simply overrule in that the courts resolution as a matter of claim scope this wasn't a matter of application or summary judgment or facts was a matter between clean construction and an application and we it has all of the time in which there's a agreed upon words as the claim construction and because they're completely agreed upon and nothing else the appellate system has no choice but to say well if there's a dispute among the experts about how those words can apply it must be a fact question but did you go beyond saying these words of your claim construction think and so in that portion i believe we mentioned you know it preserved our prior construction that we had proposed although we could live with the court's proposed construction so what happens in these