construction water which we also what your attention and actually reversed himself on a key limitation and that has to do with the one four three inspection patent and there the court rejected our inability to position based on a claim construction of creepy fastened and he has since reversed himself so the only reason that he had for all of the claims but one all and our prior art was permanent and he rejected our prior art because it was permanent and it didn't meet the pretty fast and claim imitation so he he has reversed himself and therefore the one reason that he gave the only reason that he gave for all the claims except one of the one for three patent is gone now that leaves only claim sixty eight which is the dependent claim and that cla the main claim says you want to tension the side panels of the diaper and claim sixty eight says tension and by pulling it apart now to me that seems extremely obvious as how else would you do it and in fact there's testimony from both experts on this so i don't really think that can rise to the level of supporting a preliminary injunction on the one four three patent i think we have now established a  engagement seem to mean capturing an image and that again just that can't be a right claim construction because you have some claims that say capturing an image you have other claims and say inspecting an image and then you have some claims that say but of a claim seventy three says but what's the status of the proceedings below just we're going through discovery right now so i'd like to now move to the nine three nine patent which is the sheer stress patent and that he is liberty was one reference the linguist reference and does it teaches sheer stress and does it teach promoting increased engagement and here we believe the judge just didn't just misread the reference the same purpose or tries to with this throne limbs that are going in the same direction well it's not the what there's been a new development on that iran or in the claim construction that the court just decided he actually construed shear stress to just mean a relative a force generally parallel to the face of the material he doesn't say anymore that it has to be in opposite directions it know it was in the same linguist generates a sheer stress the same way if if you take a bunch of pieces of paper and you push it like this each piece of paper is moving relative to the other apparel to the face and material and so you're getting the sheer stress the court's definition is now of force generally parallel to the face of the material and the the link with specifically says relative displacement in a direction substantially parallel to the surface of the article the teaching is exactly the same best that the linguist may give compression as well as share but it certainly gives sheer under the definition that the court has now adopted in the new claim construction the other problem is is that the prosecution here is very relevant the the claim of the claim from ninety nine patent were not allowed because the sheer stress was new in fact there was a prior re that applied the sheer stress manually and the court said well the panel office said well they didn't do it mechanically so we'll give you a patent link was clearly does it mechanically with validity even though the record says that on infringement he never made a finding that we had the increase your stress or he has only increased engagement says that first quality contests this very same issue and we had expert testimony on it it a four hundred fifty one hundred fifty three and then the court never made a finding on it so there's there's element of the claim is founded first quality's process interestingly again the court set of the reference doesn't teach promoting in strength but it did it said it and it said exactly that and then when it came to first quality in the courts that first quality says they don't promote engagement strength and they don't do a share stress in the court just said well there's a sheer stress and doesn't say anything about promoting engagements press i'd like to move to the three sixteen talking patent and here again i think it's just it's the evidence that we've put forward just doesn't support the infringement finding by the judge again on blueprint page eighty one it's nowhere near as wide as the back of the what you're looking at and you can see this is this is the be this whole for looked at the video we looked at this he looked at that but then casey cited the same picture all of the evidence this is the best this is the picture this is the best that they could come up with to show this and it doesn't  with so we in the in the in the prior art we showed it's the driver's machine we showed the drivers a machine that had a vacuum whip that was equal to the pole that way so that what you would see in the driver that that is the reference that we put over it the judge rejected it because he said well it's not permanent it's again it's this difference between permanent side seals and which again we don't believe is is an appropriate distinction to make the interestingly in the reexamined the one of the seven patent examiner cited a bunch of references and said it would be obvious to interchange thank you your honor may please the court as the court knows that district court conductor the next dance of evidentiary hearing here heard from multiple witnesses had a luminous written submissions made express credibility determinations and file and  detailed findings of fact finding of substantial likelihood that first quality infringes and that the circuit claims of these patents are not are not invalid now mr george mentioned t doesn't in the preliminary injunction sense that is that it doesn't show that there invalidity defenses have substantial merit because first of all if it's a first office action kimberly clark has not even responded what the patent office did was take at face value declarations from from for example experts of first calling experts that the district court saw and heard and rejected their testimony so for that reason we think the first office action really is of no moment here in pursuit precisely because it's preliminary the standards are tolkien's full consideration of kimberly clark submissions and all of that i mean i'm not then i think it's a closer question then i think maybe but i think at this stage of the reexamination proceedings i don't think you can reach that conclusion recently now as to the one for three patent that's where the court changed the construction of prefer profession disposable pants and there are a couple of things i'd like to say about that first of all with all due respect we think the court got it t what does pretty fast and disposable pants being and as we lay out in the brief the specification consistently refers to the training pants of this invention is having refasten will seems it uses the term when it's talking about permanent seals it uses terms like bonding and bonded when it's talking about these refasten will seems that's when it uses the words fasteners and fastening components fact it refers to fastening components as components that are adaptable for refasten of the engagement and it goes into a three column description of these kinds but they presented some argument and this stage to stop means and complete i'm going to call it that so well ok go ahead i'm sorry so you want us to just agreed with the district court in terms of whether or not we consider this prior art is that where you need us to go no i don't we don't need you to go there but i think you can go there because what the district court said is exactly that that they presented some argument they presented no evidence and at this stage of the proceedings that were not saying that they had to have the clear and convincing corroborating evidence but at this stage of the proceeding a clear complete lack of corroborating evidence would be an independent basis to affirm the district court's determination and let's assume that we agree with the district court's latest claim construct and we agree with the district court that we should consider the t p c prior art when does that mean there is the first call he still has two other problems there is a substantial question whether the t p three machine even had an inspection system at all as the district court that's not as hard and that's point sixty eight of the one four three patent as mr george noted that did not that has a different limitation or an additional limitation and that is the requirement that the sky panels be pulled in opposite directions to tension of the seam the court found as a fact of paragraph eighteen of its final first quality he failed to show that the t p three machine had that feature that finding rested squarely on the expert testimony for in particular the testimony of mr butterworth  explained he that had it exactly why it didn't and that's it sixty three thirty six and sixty three seventy five to seventy nine of the joint appendix and so certainly as to claim sixty eight the revised point construction has the evidence before the district court when are all the photographs going went far beyond the that single photograph the court expression relied on mr sheldon's testimony concerning himself his observation of first qualities process as well as on photos and videos of the process and importantly the court also noted that first qualities that contrary evidence consisted of designed drawings and solely of design drawings which first called his own expert admitted differ from the actual machines and the court and they were also inconsistent with photos of the actual machine and the court found it both inexplicable and significant that first quality had failed to present photos and videos of its own machine so and the infringement testimony and that your honors as a three nineteen to twenty two six zero six three to sixty seven sixty two thirty eight to forty seven and sixty to eighty six to eighty seven of the joint appendix there was extensive expert testimony on exactly what those pictures and drawings mean in the district court resolve those against first quality obvious the method of the three sixteen pattern that's a paragraph forty of the findings that finding squarely based on the evidence concerning those machines including mr butterworth testimony which the court described as convincing on this point no mr butterworth explained why the machines would not have work with refasten will seems and this this notion that this you know mr george saying well of course it's obvious to substitute fastenal seems for permanent ones but that's a fact question  district resolved that question against first quality moreover as mr butterworth explained there's another limitation in these three sixteen claims and that is a requirement that the fastening components be pushed into the body of the of the garment in a flat district court he did not say he did in so many words that he didn't believe the first quality expert on that point but if you look at his findings which are i think paragraph fourteen to eighteen he he consistently cites the kimberly clark experts testimony and kimberly clark's evidence on those points so that is i think you know he's making the determination there which experts testimony to use accepting on the on the  the testimony in this case of mr sheldon said a b and c i think that that's exactly what that is and he's not skis not calling the other expert a liar and certainly not doing that but he's saying this testimony is more credible this is the testimony i'm accepting i don't think the district court has to say with respect to each item gardner said this sheldon said this you know i think gardeners you know full of hot air and i think sheldon's right i think that's you know that's the inference you draw from the evidence he decides to credit and that's what you see there not be a nine three nine patton with respect to the lindquist reference that's the single validity reference on which first quality relies on the district court found based on butterworth testimony and butterworth explain this in detail at fifty eight thirteen to twenty three of the joint appendix what yours what you're seeing there is not a sure stretch it's a compression course you have these two wheels that just press the material straight downward and the relative displacement that link was refers to is not one material moving parallel to another it is it is the basically the position of the hooks changing relative to where they were before the compression force was applied and butterworth lays all that out in his in his declaration now the claim construction change of the district court made that is that it's just it's a it's a parallel parallel movement or parallel force and it's not you don't have the pole that is a change but it doesn't have anything to do with the nine three nine findings if you look at the findings of district court didn't rely on that aspect of its prior construction at all in any of those findings so as to that as to the ninety nine patent the claim construction order really  presented evidence the first quality practiced all of the limitations of that patent to three twenty seven to twenty eight of the joint appendix in response first quality argued only that it didn't mechanically handle the government generated sheer stress now  george says that they challenge the increased engagement force requirement of the limitation of the claims but they did not if you look at their experts testimony for example at sixty six twenty three to twenty two twenty three he's talking his whole argument in their argument in their briefs was just there's no sure stress but just report found to the contrary at paragraph a paragraph twenty that finding was based wearily on the testimony of kimberly clark expert sheldon and he testified about what he saw when he personally inspected the process the court also had photographs and videos of the process sheldon's live testimony and declaration were based on more than three hundred eighty pictures and multiple high speed videos of the process and the  and challenges to the no no we're not saying that your honor we're not fit i'm not saying that you know what we're saying here is that even if this was was a decision on the merits the district court's findings are more than sufficient because they eat there based on his assessment of the credibility of the witnesses and it and to the contrary what we have if this were a finding on the judgment on the merits of their principal prior art wouldn't be considered at all because they had no corroborating evidence so on evidence and the district court makes decisions some of them are credibility decisions some of them there's no reason there's no need to make credibility determination also no i don't think it's troubling this was a two day hearing extracts extensive submissions everybody got their day in court in the district court decided the issues presented to it i thank you his own rejection see the use different references than the court did so it was certainly not a rubber stamp i heard there was no corroboration we had witnesses and we had humans and we had declarations from third parties and i asked the judge at the end i said i can bring more people here and we can do more and that's why the judge said what he said that's why he let this he says ok i'm going to accept this prior art and as i said this was an expedited hearing very little discovery we got the papers there last papers we got him two days before the hearing and there were new theories in there this this was for four patents and is as there are a lot of issues both the living infringement we raised substantial questions of the first thank you