called under novelist nike has the burden of proof to click to prove with clear and convincing evidence that the claims fails to inform with reasonable certainty the person a skill about the scope of invention nike has not carried that burden here there is no evidence on the actual decisive question which is whether a person of skill can identify the boundaries or edges of the toe and heel with reasonable certainty now he tells the court numerous times that there is allegedly undisputed expert testimony but there is no such thing the expert declarations that nike sites were filed years before the present dispute was crystallized and when the dispute was about a different topic in particular whether the toll and he'll were regions or particular point mississippi i certainly understand your point that judge woods opinion leaves a lot to be desired in terms of completeness  but is it really necessary to send it back just to have the court walk through the novelist factors and ultimately reach the same conclusion your honor i believe here the crucial thing that is missing is any record evidence from nike on the on this question of whether the person of skill can identify the boundary or the heel so it's not as if the court would need could walk through any evidence to support its decision under not all of that evidence simply is missing and nike has the burden here mikey hasn't put forth any of the evidence that that the district court would need to rely on in order to reach the conclusion that the claims are indefinite cancer is it isn't that the problem here before it's really difficult to to to because of its lack of completeness to to read that that opinion and to find a foothold by which we can actually review is a really important part of the inquiry and that is borne out in later case law as well and there is no evidence in this record that a person of skill would be confused about the and what is the heel region those were already those terms were already defined by the other judges the previous judge is correct that is correct the the st judge to rule weigh in on claim construction here did construe toe and heel as regions and that judge recognize that toe and heel are terms of art that a person of skill is well aware of and ten apply and those constructions have never been challenged by nike and so there still they stand today and with that understanding a person of skill would understand how to look at a golf club and identify where those regions are those are their regions that are within the skill of the person of art to identify and do so with reasonable certainty this is  within that region will impact the actual curvature measurement and so what we have to know is not where the regions are which is disputed but where the edge of each region yes yes so the construction of these terms and the recognition that they are terms of art but a person of skill understands supplies the evidence that a person of skill could determine these with reasonable certainty but i think judge shoes that you are identifying with the crucial thing that is missing here which is that there is no evidence in the record that a person of skill could not identify these with reasonable evidence of where to determine the edge of a heel or toe but not a standard doesn't require that a claim be defined so precisely so long as the interrupt you again let me interrupt you again because i think it's important here the edge is actually critical for determining this curvature right yes right and if the edge is located you know a quarter an inch backwards  a region it will effect the measurement isn't that true i would disagree with that there's certainly the possibility that it could affect the measurement but there's no evidence that it will affect the infringement question and presidio i'm not asking about you want to confuse infringement and indefiniteness and we need to know where the edges of the jury can be destroyed and struck to determine here's how you do the measure here's where you find the edge then you determine whether the printing articles infringe that thing i just don't understand how given the way you know golf club had looked and the different shapes how a half inch forward or a half inch bath in the region would drastically affect the measurements and some cases it's not an infringement question if we can't decide what the point is in the st place so is your answer just that there's nothing in bet is correct the specification does not explicitly tell a person of skill where the the a precise is there is testimony and the court found that these are these are terms of art that a person of edge of the tub to whatever you're calling her the middle of the clubs towards the end point is not personal and i don't see any expert testimony saying anybody would understand that the toe and where the heel  there is that correct that is correct and the lack of evidence on on this point needs to fall on nike because nike carries the burden of proving with a clear and convincing evidence go ahead ok sorry trying to make you submitted three expert dr ations that it now site in this briefing all of those were submitted at a time when the dispute w about whether the toe and heel were regions or points and all of nike's all of nike's expert declarations say that a person of skill here disagreed with those experts and said that a person of skill reading but the claims would understand these to be reachin there's no there's nothing in any of these experts exploration that talk about the edge or the the boundary of the of the regions and how not knowing that edge would make it impossible or difficult to determine the scope of the claim i'd like to circle back to something that judge cutest asked me about which is about how the patent does not provide precise boundaries or or teachings about the edge of the heel or the to one of the things that i think is important to keep in mind is that the standard of not a list is reasonable certainty so long as a person of skill is reasonably certain of where the heel or  toe and the claim is not indefinite and any dispute about how to measure the per site radius of curvature on any particular golf club is a question of infringement not a question of indefinite you explain to us why you didn't i mean i understand you didn't want to yet another delay before this particular judge but but why didn't you submit some supplemental briefi the primary reason that we didn't ask to submit supplemental briefing in september of two thousand eight hundred and eighteen dollars excuse me is is the issue of delay at the point that the district court asked whether sasso would be interested in additional briefing issue had been pending before the court for nearly five years and we can ask i ask you did you ask did you i mean the court acted like the the judge acted like that she was surprised that you guys were still around you know putting aside the fact that we've got reports that have to be issued every six months did you give her any reason to believe you were still there and waiting and did you did you file requests for for for a ruling anything to prompt the judge there was never any  filings on the docket but my understanding is that helpful for sasso occasionally reached out to the court and the by phone and you can see in the record that there were a number  of status conferences that were set and subsequently rescheduled and so saso believed that there was always a ruling right around the corner and that no further action or prompting was necessary ok mr harris good morning and thank you your honor may i please the court i'd like to start with the line of questioning from judge houston judge rain were i mean fast right isn't she that those were submitted in connection with nike's position that no they don't that no one would understand what the toe or the heel is and that those positions were rejected well not exactly your honor and let me explain and this is where we think it's important that the court reviews not just judge woods opinion but all forty four the toes side and a single radius of curvature on the hillside and because i'm doing that i don't need to worry about the pinpoint or exact location of where the toe and he'll start because it doesn't matter again we're past that such as chang said no that that's not correct you can have a radius of curvature on a complex curve so i think we are back to where where everybody was during the last argument which is the question of the edge now let me let me ask you as i see it we have two lines of cases one that says that you can determine indefiniteness as a matter of law and that claim construction where the term is fully subjective not or nonsensical and then we have another set of cases where we say where the question is that that multiple there are multiple methods of possibly determining infringement  that those are questions that have to be decided based on underlying findings of fact it would seem like what the judge has done here is e judgment without making any findings of fact and without allowing the jury to make any findings of fact i'm not saying that indefiniteness shouldn't still be alive and well for purposes of you to fight but i just don't know how we say that that it can be determined on a one sentence opinion well your honor we disagree with you and here's why you're you're right judge cha the issue and he explained that like this he said that the radius of curvature measurements because of the way that he construed radius of curvature necessarily depends on identifying the exact location and so in other words your hon or he came full circle back to where nike and its experts had started in two thousand and nine that is if you're going to use the toe or the heel as a basis for measurement which is which judge wind whether said well we're not going to do that experts say that that there's no way to determine where the edge of the toe is that's exactly what all three of nice experts said they wouldn't know where the post starts or stops or where the heel starts or stops because they said they wouldn't know where to take the measurements from but they never said i wouldn't know if i'm told to take it from the edge they never said i wouldn't know where they wouldn't be able to find the edge well the plain language and this is point until the toe begins or the most were reported until the heel begins and you don't ever have anyone say that they wouldn't know what that meant what we respectfully disagree i to be taken front and back again they didn't they there's nowhere that they say they they would not be able to figure out what the edge or the beginning point of the toe or the heel is right well i agree with your honor that they don't use the word edge but again the claim doesn't use the word edgy there and again point and point they don't they don't ever say they wouldn't know that they  use the terms totally heal as a measurement point they would have to be assigned a specific definition with a specific boundary which which i think can reasonably construed as an had one interpretation of how how to determine what the question is is that is this something that's decided that claim construction or something that that needs to have underlying facts results because it has to be by clear and convincing evidence and we've said where it's so obvious on the face that the word is frivolous or nonsensical then we can say that by clear and convincing evidence it's it's indefinite as a matter of law but we've also the clear air standard issue and instead does that the novo review will you get to the same result there is absolutely nothing in the intrinsic record that would allow or or or  thank you this case is much more like the moulton it multiple measurement cases like dow and have a but the critical difference between this case and those is the state of the record in those cases there was evidence in records that whether the accused product what in french depended on the methodology employed there is no evidence of that here and there's no evidence that a person of skill could not locate the boundary or edge of the toe in steel with reasonable certainty nike has provided none of that evidence and without it nike cannot carry its bur nike and i alone that means the rd the district court should be reversed and remanded for further proceedings thank you good timing the case will be submitted