then next case for argument is one three one four six two riders vs ford motor company to conclude that the clear and convincing evidence standard does not apply where did this a court say that making improper representations to the court about statements of law or fact and you're going to tell me that this district court judge held that the clear and convincing evidence standard doesn't apply to read them and claim so please show me precisely where it does it is not and let me be clear for the court the district court does not precisely reject guide explicitly the application of the clear and convincing standard she does it implicitly not shown by clear and convincing evidence the dependent claims thirty nine and forty are invalid and then if you go to page twenty one well on page twenty  e begins her analysis of part a of the the claim differentiation argument and that ends on the first paragraph of page twenty one and then the court  disposes of b and c in the following paragraph and then concludes in the third paragraph that the claims are invalid and so the court acknowledges that the clear and convincing argument was of in one of the two sentences that you just read us is a direct quote from our case is that quote in accurate or misguided or somehow otherwise wrong notes are either so she made a statement of law in the form of a direct quotation from one of our cases and your thing i should interpret this statement of law from our case as rejecting the idea that an issue patent has a clear and convincing evidentiary burden that attaches to it is that your argument t these claims thirty nine and forty eight in this in this two page analysis to have an analysis of the district court does not even consider that in body and in determining where the operator of the vehicle swipes the are outside the card and the vehicle is permitted to start to drive and so that embodiment does not include a reference to an prosecuting attorney reference as providing support for all of the claims and read them and i couldn't cite anything that suggested a fuel line is a fuel container and mine missing one because you pointed me to one section and while this may go to your commercial noncommercial transaction argument i don't see how it supports a fuel line in the fuel container you're correct your honor it's not explicit it is the argument of the pla has always been that it was implicit but that this implicit reference in the specification was clarified by that by the addition of claims thirty nine and forty and that and that is what's put the public to even relevant for us to consider if you can prove infringement which means you have to win on all three claim construction well i think everything depends on honestly the the validity of the claims thirty nine and forty if claims thirty nine and forty are found to be everything is contained within one vehicle there's no outside source for delivering the fuel to the vehicle it's all contained in one cement and that's what the the prosecuting attorney presented and column three lines forty to fifty one and the final terms is commercial transaction terms what transaction term which which the court determined to be a commercial exchange and and again our position has that that's our position with regard to  waited and saw the briefing was in see was whether it was appropriate to move or sections and i think it's clear that it is i think that the claim instruction arguments advanced by playing us have been for it was from the outset of this case input orifice of a fluid container as this report recognizes consummate only with the idea that there's an extra null station or some kind of external pump and you're putting you know the gas pump into the gas tank inserting gas or other this i'll tell you what this reads to me i mean you probably are very familiar with patents this recently learn more like it's an object of the invention to it's an object of the invention too i mean they had the unfortunate choice of using the words president mentioned we have subsequently said those are magic words but nonetheless this doesn't read and so he meant to say every claim has to protest to necessarily have every one of these features right and he doesn't look i don't see any other real list of the object dramatically was on the court said it's perfectly proper unconstrained the claims to look at the purpose of the invention and so i think looking just for thirty seconds of a column two of the specification it was clear from the outset that plaintiff's constructions of food and if you look here there's nothing about fuel there's nothing about fluid it simply says one of the things the convention can do is because you have this id card when you put it into the car it all out of turn the car on doesn't say anything about how that happens is it electronic is it by locking the steering wheel it suit against the product that your company that you represent produces or particular phrases in terms of their claim construction argument when you think what precisely would you direct this think it's true yes because i don't read their claim construction argument as having enough percentage and to fall into the category of frivolous right there's no clear statement in their claim construction about what something that i would deem is necessarily frivolous that's what i'm having trouble with what but as an aside maybe even the the again sir in as applied to your product even though they didn't say examine exactly what this meant if they're playing with your have to read this claim not standing alone but as a whole as part of the written description of this patent and if you look at every jot and tittle of the written description of this patent it's clear that what this patent is about to the next turn of your source like a gas station sticky gas goes into your car and you put in not considering things that are not ready for it and it's not as if there was an adverse party in the examination so i appreciate that but i'm getting to the argument to your sanction argument i mean we're not getting to the merits of certainly the district court had no problem transaction so when you go in two thousand and four and you go back to the pad enough and you say hey we're doing a self initiated examination we're adding all of this material and you know full well that the sorts of products you're now trying to cover are far beyond problem is that you're trying to fit a square peg into a round hole you're making arguments that might make sense under twenty five minutes of telling the circumstances analysis and you're talking about whether or not what they did on their claim construction with objective lee reasonable  don't my point is that even if we did not mean i think we have clearly there is on three of five but even if we didn't i think we still win because clinton and you can't possibly cover products and neither can the dependent quite so if i read the limitations of playing twenty two into than three it doesn't make any sense because then you have something that is a commercial transaction it's an extra not a fuel source and yet somehow it's also inside the vehicle i mean the bottom line is i think the simplest way to think about it is that it obviously broader but i think no matter how you think of it we still  do you agree procedurally that that if in fact you read all those limitations in and we would find an infringement that that because in solidity is the only presented as a defense in this appeal that we wouldn't need to our court and be brought in others restaurant not there has also said it's that's not the case that we're not going to make the district courts right opinion unnecessarily every and yes i agree with you i think that there are a lot of cases where someone question and to keep it he then will add three minutes to figure five three and a half minutes that you have remaining thank you your honor it's just a number of points in revolt first  someone gets into a vehicle the swipes the card is able to drive away the whole pattern is about fuel delivery so so our argument is that example is about fuel delivery that's what this patent is about  d this case as as was pointed out was was not brought against the automakers and bill clinton himself so how is that that car example about fuel delivery meeting to based on its for its reading of a claim twenty two and then i would concede that that would be frivolous and that would be an improper construction and there would be have been no merit to proving that case  infringement and that in particular what fathering is your argument is that a fuel line the portion of the vehicle that you've accused of infringement doesn't include the gas tank for example it's just the injections or some and you've said that the fuel line out a fluid container on the one hand and a separate element which is the fluid delivery system which included all the conduits and fuel lines so given that claim twenty two had two separate discrete elements that are set out the lead to the fuel pump the fuel pump then takes the fuel and puts it into the engine and into the combustion chamber where where is utilized by the vehicle in order to operate on things samples of fluid delivery system in poor container when it sits in a glass of water because there's a portion of that that has water in it that doesn't make the strong fluid container still the conduit for moving the fluid from one place the other but the glass is the container your honor i don't know how much of this is actually on on the record so i don't want to go too far into it out and facts for the court but a vehicle won't start unless the fuel is present in the fuel lines in order for the fuel pum to deliver it to the combustion chamber through the conduits that exist between the fuel pump and the conversion chamber so the fuel line is the reservoir that the fuel pump draws from  when it parses idle the fuel drains out of the fuel pump is designed to do that because otherwise you get clogged injectors and back in the days when people had carburetors you get carburetors that would gum up so the fuel doesn't stay in the fuel  but the vehicle wouldn't operate if the fuel lines were dry when you started the fuel pump because it would have to you have them up a pre pump to then deliver the fuel from the gas tank into the lines so that he has a right and when when the district court invalidated those claims the district court took away that property right and he has a right to appeal for the deprival of that property right and so and only so long as your argument made in that endeavor  for yes your honor and i and again i would say that if this case had been brought on claim twenty two after a situation where thirty nine forty were not allowed by the patent office yes it would have been f thank you thank you firstly i want to point the court to join appendix twelve sixty two this is the my point is complaint and they actually say and this is in our brief as well they actually say in their own complete that the fuel lines are not the fuel container they know the fuel in there the fuel container and it's frankly on whether they're relying on the dependent claims to construe claim twenty two at the market hearing they succeeded in the market research they said they were at the market hearing that said they weren't in the opening grief they did repeatedly on pages five hundred fifteen in their opposition to rule thirty eight sanctions and this court said one specification quote repeatedly and consistently unquote defined the invention a certain way that clearly refutes country arguments and makes them quote objective leave a source on a quote it said that the sanctions are sanctions are appropriate for the more which is to say i think that the district court denied the relevant sections pro forma least i would like to think so and because when we went to rule fifty four into eighty five section of this record and say no she didn't say they're not appropriate she said i don't want to do motions should necessarily be denied they are the same standard in look at different thing in each of those two incurring so nothing should be read into whatever it is that we do thank you for that but let me also just say on the top of the rule whether i do think that