you're now saying that that you know that we completely agree that the suspect doesn't dispose of one point attachment is that right right now obviously that's inconsistent with what you argued following you were citing expert testimony to the contrary correct europe in the in the response of their motion for summary judgment you you have pages of testimony that you cite from your experts saying that it it clearly discloses a one point attach the the the case you argued below in response to the summary judgment and i could point out if you want to cite page after page of expert testimony about how you argue that it disclosed a one point attachment and you're now admitting in your brief here that it oh do you now agree that you couldn't establish infringement under your patent since the the allegedly infringing device i understood it has a one point attachment and there's no dispute over that do i agree that i cannot establish infringement yet not ok and obviously you want to know why yes right and that's the difference between that's the difference between trade secrets and war happens if i mean if for example we take the district court's claim construction as it exists today and and she could there is a disclosure of pasha only supporting it it's undisputed if you apply the word oh my appeal here is that she applied when she actually applied the claim and judge sarah's a very good joke by many cases in front of but she applied the claim with the end reading in to the claim the fact that that has the completely i mean maybe for her the problem is that you are doing the same thing to her that that you're doing to us which is you're arguing out of sides your mouth so out and so you argue below that it did show a one point attachment and you're arguing here that it does not sell what i'm trying to understand what their relevance are you trying to to save your patent from an invalidity better agreeing that you can't establish infringement on a one point attachment trying to save the patent from validity error because she didn't even apply her own claim construction she applied if you if you apply her claim construction there is no basis for that summary judgment motion now i know what you're getting at which you are getting at and first of all first of all at the trade secret trial the position was that it was not disclosed in the app that's that i understand we are coming from these of the summary judgment which was alternatively plug and argue it was on that issue but but the point is not now the question you're really asking me is ok the patent is held valid that the the now reverse the decision it goes back and now the question is is there an infringement that's what you're asking if and you're asking me then how can it be now i figured that was going to be the question that of the single attachment can be an infringer and let me tell you exactly why because the question is what's the invention now analogies analogies as we all know can bite you and i'm going to give it a try and if invites me so be it but let's assume we have an airplane of all right invents the airplane before him all we have is  then claims eight machine for flying period on the way to the patent office he thinks about a jet engine and he invents a jet engine he doesn't disclose the jet engine in the pap ok he keeps the jet engine is a trade secret let's assume he did that when there aren't someone portsmouth jet engine on a plane and he single attachment claim as written would just read it through and and as i understand what happened below was that the district court said you haven't supplied a writ sufficient written description in the specification to cover a single attachment do you disagree with that is there something in the specification there is no it would adequately describe the single attachment up there is not i agree wholly with the judge's conclusion does not disclose supporting the hand guide with slowly or completely with a barrel much i don't wholly but if you look at her claim construction a service she says possibly or one of the other up so therefore the question you you can infringe you don't have to disclose every embodied men in the world to t that's what they were trying they were trying to focus the invention on the yoke as opposed to not and by the way let me let me just just end with this so that you can if you  here that's going to be an issue by the way for judge seris after after this because i think the sole issue before this court is is for a claim construction correct and on it's face it's absolutely incorrect  it's applying incorrectly and if it's correct then the patent is not invalid piece of the written description because the art is there and it's undisputed that indeed various pop there is support in the patent for pasha leigh holding you know no question about that if that's undisputed by everybody so i would i would ask that eight if you do if you do a doctor instruction then you must submit respectfully that you must vacate a summary judgment motion of invalidity send it back and then we will happen there's treaties discussion these are very the interplay between trade secrets patents and infringement but that's not before his proposed construction would result in any difference in scope from the construction of the court arrived that the court made clear did the district court excuse me made clear that it was applying the plain meaning that arms s and there were i'm implying them excuse me they were employing the full meaning of support you could be partially could be complete that's the scope of support every she said either or in her construction that you did not appeal so the question is is is there a problem with the fact that  interpreted her own construction to require complaints or no it's better up in the law that the written description i'm sure the specification to meet the rig scriptural argument must demonstrate that the inventor was in possession of the full scope of the claims at issue  mr his i believe acknowledged that under the arms for bush interpretation the full scope would include single point attachment therefore the specification must demonstrate that the inventor was in possession of single point attachment as if he is saying even though her claim construction was in the or that both sides of that war had to be met by the specification had to be covered by the yes that's what i'm saying i can give you some case law on that effect it was in our summary judgment but i don't know that it made it into our appeal brief but  case forty one after three d thirteen seventy one in each of these cases the court determined that the full scope of the claims must be supported by the specification i'm trying not to use the word support in the two different context here there must be written description in the specification of the full scope of the claims and if you as this somewhat backward though from the way we often approach this mean couldn't you argue that as you did below it the claim construction actually should only show partial support because the specification doesn't show complete support with a one point attachment well the problem with that is the claim language itself is not ambiguous we were actually trying to get the receiver sleeve limitation read into the upper hand car park which would have been a second point of attachment we don't need to find at the claimed language is ambiguous in order to look at the rest of the specification that's pretty basic principle so you normally the court should not and the tickler languages at thirteen twenty seven eight this this this court specifically identified that the the duty to preserve claims or the doctrine of preserving claims to i'm sorry constrain claims to preserve the validity is refer to both partial and complete support so in terms of controlling them sorry construing of the word support the specification itself identifies the sleeve as self supported by connection to the rear portion underside of the receiver type they're referring to complete  support their background referring to the prior talks about the requirement the gun barrels be extra heavy to support the added weight attached by means of collars they're referring to complete support of these of these collars and the things that are touched them in the summary itself  where arms intended for support to be limited the use the limiting term they refer to additional support that may be provided by the addition of a special deal they recognize the need to put in a term to modify support so that it was not comple or they did not do so in the claims and actually to address your question to mr hayes the distinction between claim eleven and claims thirty one to thirty six is that claim eleven specifically recites the receiver sleeve claims thirty one to thirty six do not weapon for support and we claim that she did here because she will be for trial that if the only trade secrets were clement of the barrel not arms loses and she made that ruling on a specific representation of arms three weeks before trial i look at the entire context of her discussion what she said was if the only thing you're claiming is a trade secret is disposed in the two four five then you lose that's right that's right you mean you take a few sentences out of context and try to make that a broader statement but but all she was talking about was that you for five not you not the later at the reissue that's right but what she's saying is is is that the if you trade secret is just a clamping mechanism and that's that's not a trade secret you got to give me the more another and then they said well the more it is the the machining techniques the more is hot it or attach attachments to it and different things such as that she said that's what i'll be looking for at the actual trial so consistent with that ruling at trial arm's introduced only evidence of a to point to text me and the two witnesses were mr swan and sergeant major prayer us and they each gave physical demonstrations the only evidence he showed to the jury is is the receiver is an integral part of the nine hundred ninety nine prototype and he gave a demonstration of that he actually got off the the seat and he showed there had to be seriously it goes over the top of the if you're really just asking us to disagree with the jury here i mean and the jury had the two for five the judge told them that if all the only thing that was that they didn't dispose was in the two four five he loses and the jury still found  other things the more which were the the process had a many faction regime although that laundry list of things they they didn't introduce any evidence of them that they were actual trade secrets and then they never link them to anything that tro they had no evidence of the manufacturing of arms and of troy no evidence of it whatsoever meet well before your time runs out let me turn your attention to this trial allegation i mean with respect to jury taint  as the district court judge appointed you feel to have jeff in any way shape or form to her plan on how to proceed not timing not just substance not procedure why isn't that a sufficient degree of waiver so that you can't come back here jury returned then we found out that the clamp was in the drawer room not that day but the actual day before the wedding to make a record waiting to ask her to immediately call the jury and make inquiry well we did and she asked those kind of perfunctory questions in front of each announced how she planned to proceed and there was no objection that i could find in the record with respect to how she planned well there was no instruction that could be given at that point and she said i'm not going to do anything until afterwards and it was her decision to make i won't do anything until afterwards well isn't it your position here that she should have done something or well she should have found out before him and yet and so did you suggest that when she was saying i'm not going to do anything till afterwards did you say no  honor we request that you do something now well we didn't know at that point that there was an actual the client was in the jury room the day before had we known that we would have asked for that but we did not have the time when i did not get to cheat right the only way to know that would have called the jury or it would she had made the specific decision which she told us on the record i'm not going to do anything until after the jury verdict and then she says afterwards had you asked me we would have done so but i thought well you've would have made an objection and said judge the jets been on the jury's mind for the past two days so there's there's clearly there's jury change here so we've got a problem with this because there is clearly think a jury tank  saying you just didn't discover that after the for it that's right that's right we could have until after the verdict because the we didn't find out that the jury had actually found or said that it would be client was in the room the day before so there's obviously there's a huge problem with history verdict and because i didn't say object and i want something done right now i don't think excusing the fact that we've got a problem the jury verdict what is this what was the tape that you're talking about the drug so there was ok well how can you determine that there wasn't a taint on that record that the judge had clearly was on the jurors mine the day before because somebody had bought it and they talked about it and you can see  by the client into the room in clearly it was still on their minds the next day because they still talked about it and there's something in the record indicating that that was related to this and i didn't see that i think well i've got to i've got to remember what the actual jury question looked like  two different points that were being made one is the claims in the room and they want to know if that was ok to bring out so i think and the other lies that we think one of the jurors not necessarily the client person and i was basing a verdict or second or they talked of the second day we certainly will never know that or what the specific discussion was but we do know that the jurors had a hard time with that with that issue and we do know that they they talked about sympathy well you can't connect sympathy to the actual discussion of the klan so we think that's a problem with the way the jury rendered a verdict three a decision the dealing chapter and verse in my brother's trying to retry it to a trade secret case all over again and he's doing it with all due respect i miss eighty quoting and cropping the record here and there particularly on the testimony he brought this is a motion to the district court after woods asking for a new trial the district boy on a i think it's a  clamp stuff what she basically said is you never asked for corrective instruction it was a strategy on the massachusetts law if you don't ask for a corrective instruction that's and that's your strategy because maybe you don't want to upset the jury about it whatever specifically asked if you all knew what the procedure was you've tried cases i take it for years you've never had a situation where there was an allegation of some improper item being brought into the jury room if she think if he thinks she did something wrong or wants a corrective instruction to ask for it and if he doesn't he waived in the reason he does it is because of the massachusetts law or it's assume that that's a  r the reasons i explained in the brief but we have to take the district what's claimed construction as written that's the issue and and and the problem where we asked to go if you go supporting him god completely by a barrel not no question no dispute you want to wrap up your argument right time so you cannot take that if there's no what string together means you can't read it into a claim and then say now but i read it in at the time but that was day three the clamp was in the jury deliberation room and day two we didn't find that until then we saw this conversation going on with the jury i mean i've never heard of a case where the judges being told repeatedly what the jurors breakdown on their votes it to one but he disclose that to us that it was nine to one so we all knew it was so when did you find out that the clamp in the room we found out in the before the verdict right yes before the verdict but it was on day three of the that may well be whether or not you said you would have said to the district court we better make an inquiry here well because clearly it was on the jury's mind a day later so they were thinking about it not on the day that it was actually in the room on day t but they were thinking about it still on day three so that's a problem and he thought tons of up to run out and i didn't i think i made the argument i want to make that the the laundry list of the more items that arms introduce argue or trade secrets they never introduce any evidence of those oil and remember the judge at the ground rules out by saying i'm looking for the more i'm not looking for the clamp so therefore the only thing that that