start by talking about the seven for nine not infringement issues the first one is we believe that the court has heard in its claim destruction with respect common face we urge a a requirement with respect coming face to be a claim one requires that they be a plurality of holes extending through a common phase of the housing at a second hand in a couple minutes i'm going to talk about the second and limitation the examiner in the prosecution the parent patent zero six six interpreted this woman taishan as distinguishing the prior art boise reference and specifically figures four and five boise delivers water through a large cylindrical tube to different spigots for the filling of multiple balloons at the same time very similar to the invention here in this case the applicant an initially attempted to amend the limitation to get over boise by adding that the holes have to be in a two dimensional already this was unsatisfactorily to the examiner and the examiner found that it was necessary you know examiners amendment to add the term common face to distinguish the president vention from boise so the question is why did the applicant and the examiner add the common language common face language to the claims why does boise cylindrical housing have holes in a second hand which is what the examiner said but not multiple openings that are facing in the same direction there's no trial requirement in the claim that all of the openings face in the same  patterns you're going to trial in texas and the jury has found validity and infringement and why shouldn't we just let things proceed let the trial proceed you think you've got a patent office proceeding things play out in the district court that will presumably take months to play out there want to be imminent tension quite there is ok so you're telling me the timing on when the permanent injunction will be ordered tonight is we're still months away from that well we don't have an oral argument the case here on or on those issues until march thirteenth and so there presumably would ordered oral argument on that from march thirteen which suggests to me as counsel that we probably would not be looking at that issue until april but i cannot promise that your honor it's also i believe with respect to claim instruction it's critical to the case i believe the court is clearly wrong and i the court nor zero has never offered any explanation for how the courts construction of common face can be squared with what the patent office did in boise and i certainly cannot figure it out the patent office stated that boise does not have multiple openings and a common face of second hand but if common face is understood as the district court openings in the common face of a second hand and so the scope of an injunction whether it's below mary or permanent is going to be critical as we go forward tele brands has attempted in its view to compete fairly it's come out with three different products in an attempt to avoid  district court has actually held in a temper stating that the battle balloons product that is of issue here was indeed if an attempt to avoid the patents the court denied the request for contempt and if we accept the claim construction argument that indeed a common face has to be plainer there can be no infringement with respect to the seven hundred one patent even if we accept the district court's construction and again i believe that's irreconcilable with the prosecution has agreed there still is no infringement and that's because even under the district court's construction there have to be multiple holes in a shared outer surface keyword surface what is a surface to determine what is surfaces you have to look at the geometric balance otherwise you can determine what the surfaces it is undeniable that in the accused product there is a spiral staircase and each of the spiral staircase has exactly one hole in your right knee where the shared outer surface language comes from here it's the courts construction your honor and i'm quite frankly i have no idea where it comes from there would be and so therefore the the court you know has sa so we believe we when whether it's under our construction which we think is the correct one or under the court's construction let me briefly talk about second hand the second with respect to second hand the court also disagreed with the patent office the patent office had found that the that there were multiple holes in the second in of boise so this would be clear patent office found that those multiple holes in the second end were not a common face that's when a distinguished but it did find that there were multiple holes in the second end of boise and what it found was that all nine of the holes you identified four on one side from the other one of the end wars the multiple holes in the second and so it found the second end to be everything other than the first one which was the end cap where the water comes into the end of the tube in contrast the court sa that it when it looked at figures four and five of boise it found that there were and aligned plurality of holes along the cylindrical portion of the housing and a single hole a either end of the housing and it went on to distinguish that from the claim and this is at appendix two four nine five stating importantly the plain language of twenty requires that the common face be at a second in of the housing boise does not disclose the shared outer surface with a plurality of holes at a second hand well again we think that interpretation is inconsistent with the prosecution history but if the court is correct that for second end you have to look at the the limit the or the what if you want to cause a linear linear limit or the outer limit or whatever it is then we would not infringe for a second reason which is the second in another words our second hand are furthest most surface from the first and is a plateau you can see it clearly i think in the in the drawings that has no holes whatsoever so is somewhat frustrating your honor when the court is you know interpretating  it's inconsistent with the prosecution history but if the court is correct well then we should when under the court's rationale that the second end is the the farthest area away from the first and in this regard the court has gone back and forth on claim construction its original claim construction and the first case for second end was an outer limit of the housing distinct from the first  it then said rather than looking at the outer limit of the housing just thing from the first then which i think by the way would have meant we didn't friends because if you're talking about the outer limit it would be the top the court then changed it to second hand as an outer surface of the housing that's the state from the first one you want to save rebuttal time you know well and i would like to make one comment about obviousness and i will sit down and i do understand i'm running up all my time and thank you for your your warning with respect to obviousness this is the unusual case where we're really talking of errors very straightforward mechanical invention signs yo pretty much does it all it's a device for filling multiple balloons it's missing one thing it's mentioning the the elastic ring well fortunately the elastic ring isn't donaldson donalson on a bigger sleep teachers have an elastic ring it clamps and it seals on detachment it is not a big deal to say if it works for one balloon and i want to feel multiple balloons i'm going to take the elastic ring the overing out donaldson and i'm going to use it with sawyer so this would appear to be the quintessential invention where yes it's cool and you know yes people have a lot of fun with it but at the end of the day it's way to patent is not obvious then there's nothing for this court to do and as this court suggested we spent six days in east texas together in a courtroom were a jury decided that the patents were both in french neither of them are obvious they're both valid and that all of the conduct of telegrams is willful so absent anything new and i would suggest to this court that there's nothing new in the argument about common face or second and in tennis to that there wasn't tennis one with respect to either obviousness or frankly infringement telegrams imposed a plain era the requirement on common face and in our view when we talk about face we're talking about my face or the face of a mountain or the is well at the time of this preliminary junction out of there was no claim construction as of yet so from what i recollect they claimed construction of the court used was essentially a decided what the plaintiffs what we proposed at the time so and it did rely in some part on the original claim construction from tennis one but specifically in this case there hadn't been one yet what the court did is it did in fact change its claim construction from tennis one to tennis two and part of that was because t it didn't understand what the court meant so the court clarified its claim construction of the shared outer surface of the housing and i would say over and over again it came up to trial to with our expert and with their expert and their questioning was well what do you mean we were go talk about super technical very specific definitions of shared outer surface but it's and for common face we're just going to talk about common face but what really is at issue here is the entire language of the claim it's the common face of the housing and that's i mean i i don't think the court made an error there and i think it's well within the court's discretion to make that in fact i think this court found in fact that the last time in tennis one that a very similar construction almost the exact same construction was appropriate and well within the court's discretion i believe also i know mr underhill said it was a plain air standard but reading the opinion it looks like the court out of the gate said we're reviewing the senate abuse of discretion and burn your time and take my whole fifteen minutes i will say that we feel that the district court did a good job there was a lot of evidence a lot of testimony a lot of time was put into this by the court and this is kind of a serial infringement case we have another matter with you right after this for the third iteration of the same product and we think the district court was right in what it found and we just ask that this court confirm the district honor the first is that we again did not hear any attempt to reconcile the court's claim constructions with the prosecution history and the handling of boise could you speak to  infringement for the following reason the scope of the injunction is extremely important to telegrams as i said and as counsel said tele brands come out of the three products an attempt to avoid patents and it needs to know where the line is and the line is different on whether it infringes the seven four nine or the two a two for both patents in addition there are pending motions in this record for example a sanctions motion that our non infringement position with respect us or seven four nine is so frivolous and our urge to claim construction so bad that we should be sanctioned and this is an extraordinary case that's awfully strange argument in light of the fact that no one the district court or opposing counsel can begin to articulate how the court's claim constructions can be squared with with what the prosecution history did and in boise i mean we this is a  believe that the scope of the injunction is also additional and the scope of the injunction would be different if the court were to affirm only on the two way to or if it were to  limitations though the two way two is narrower in the sense that it has a pressing limitation that the seven four nine patent does not have and so