only ladies and gentlemen  i note that mr kerry act has a cross appeal on sanctions and you're entitled that just point out that it's only on sanctions and since most important issue and the one that precedes most directly from this court's ruling in philip's ideas that yes thing to basically meant means and hydrous but yes you are yes and dealing with is a question of knowledge when the five thread is correct which proceeds from the claim construction but i wasn't there a lot he's holding on i think so yes you are also on summary judgment and i would suggest that the district court applied the wrong standard on summary judgment for lashes did not perhaps correctly follow this court's decision in one less vs feathers didn't but even if you're right on the end h and this court's subsequent decisions which we have cited states that the court may look at the dictionary definition however where as here there is ambiguity in the dictionary definitions for it choice among dictionary definitions  on it maybe just even a misinterpretation of the dictionary definition the dictionary definition which was even relied on by the district courts is usually an asset not always an asset but the court read that to mean it must be an ass exclusively an asset and therein lies a problem it will i couldn't one kind of construed let's assume we construed this case as being just a near the you messed up and you switched the you know the letters that's a different kind of case than the one you're posing for us is it not that's correct and by i think that's what caused the confusion not what what we're arguing here let's assume we want to look at this entire record and conclude you  mistake because and hide right with a cheat refers to the entire product calcium sulfate and hydride or and hydrous calcium so let's assume it was a type of i mean just a series of typos how do we analyze that we presume that that's what happened here well one can look at the term in context if the entire pattern had simply used the term and hydride with a d without any other terms then i think the issue of perhaps error comes up because the were alone and hydride is confusing and they're saying it's ambiguous and that it's a meaning that doesn't make sense and therefore we ought to resolve ambiguity using all the resources we have but yes your honor although i would suggest that given the construction of contemporaneous patterns which we cited such as a three three eight pattern from philips of all people at the same time this term i think if we look at the argument that we made to the district court appellants appendix three three eight four we stated quote calcium sulfate serious so for without associated water and year rule and then having applied six years the court essentially shifted the burden of proof to the plaintiffs to prove that the delay was not unreasonable and the delay was not prejudicial isn't that right i mean as if there's a six presumption there is the it must resolve it must have no disputed facts as to when the plaintiffs knew or should have known of the infringement the court cannot simply say it's been six years we apply the presumption first inquiry before even reaching the presumption under wanless is are the disputed fact as to when the plaintiff knew or should have known of the infringement and here there were disputed facts in particular we had reassurances from to take steps to test or to bring in actually not to just saying well accepted your denial but in this case the undisputed facts are that it is not possible to test the other product ultimately discovered i thought you were saying you ultimately discovered the infringement of the five fifty six connection with discovery for the sixty four am i wrong about that that is correct so what happened well the sequence of events was the six eighty four pattern has some unique crystals in the cement which can be tested for and through a very complicated series of experiments actually our experts synthesised the chemical and then made reference samples of the chemical in samples of cement known not to contain that product and then we compared that to the product and found that the product this is around two thousand and two why couldn't you have done that before  hydra and again this is undisputed on this record that the sequence of events was the sixty four patent was issued we tested the cement found that it contained the crystals the unique crystals from the in five fifty six rahner i think that with respect to the that is earlier on referring to claims ten and eleven of the five thirty four the five thirty four as a whole with respect to claims ten and eleven there is the addition of the concern on the five thirty four ruling frankly are some of the rulings that we hope will not survive to the next stage if there is a next stage such as the court held that we had to prove that every single bag of cement if the that standard is not applied to the five fifty six and six eighty four pounds that was the main reason for raising the these arguments as to the five thirty four that was our main concern on those issues that some of those i don't know if you call them clearly that after the lawsuit was filed that was document discovery and in particular the defendants produced internal memos in which one of them the chairman of the company said sali will and hydride is the trigger to our reaction once we have that completely new they were using this on the bill and high drive and we moved to amend for the five fifty six patent and just in closing would ask if you're honest could please look at the issue of amending the complaint and it's a purely first something that we missed you know our briefing that's important there was a footnote in the district court's opinion with regard to  that's the only point is that in the district court the philips and other patents relied on by the polling here to show as question that is it not true that the diction there are conflicting dictionary definitions in hydrous that some seem to limit it to an asset and some don't know they're not they're not inconsistent is that instead of an acid another compound like an acid soul can be used to make a name hydra they're not talking about going beyond the field of well how do we know that from the dictionary definition the expert's opinion says given the context that an hydrate is used in the patent it is not unreasonable to assume the author meant and hydrate and not and hide right the neutral expert seems to be agreeing with the other a common definition of the origin hominid definition that's not the same thing yes name the only definition right so that's true but if we veer off into the realm of who knows what kind of obscure definitions that someone out there might have the patents lose their meaning of the patent claim i'm trying to tell you you're trying to read this line in a way that makes it meaningless right yes absolutely right in a way that makes sense out no not in the circumstances of this case because the law does that this court takes claims it finds them we're not but it interprets ambiguous cla to construe the point in a way that makes no sense what kind of a rule of construction is that the rule of construction would be that the patten t v is left in the position in which he puts himsel i repeat the law in this court is the court takes claims as it finds them and it's not up to the court and what you're saying your honor respect we submit is that this court will become a an office that reissue which would have been the the proper procedures are you saying that in every face of the there has to be a certificate of correction but what i'm saying is the ambiguity here is not an ambiguity were in the end your honor there are different there are different dictionary definitions it's not clear no one has i'm sorry there's nothing has been proffered to say that hydroid whatever but and hybrids are no class of compositions whether or not they're made from acids is not the point here the point is are they known compositions do they have a structure which is clinker having having nothing do with the the clunker yes let's write a will you would say that the case is a clunker isn't wouldn't wouldn't you agree that the claims the neutral experted by simple arithmetic demonstrates that the crystal x composition covers on the order of fifty five hundred different compositions so it's a broad claim it's a book like in this case the patentee is attempting to persuade the court that it's limited to a single substance and when you have two people who disagree so why do that because it's in trouble if it's not limited to that compounds when only a single compound was intended made the claim and definite and with regard to crystal why the situation is even worse because and if crystal why it is indefinite and the cl  which they say was impossible it was plain that it was calcium women no self an eight so met it was plain that it had a compression of more than three thousand observed you get pretty close to the if it walks like a duck quacks like a duck it's probably a duck and that's the situation here i mean if this court permits and there was no follow should have sued when we couldn't test for the one claim want to know what we're saying well but if you sit on our right for thirteen years when they were built the indications that infringement might be occurring you are putting yourself in a position where you're going to be disadvantaged by will lead the way if you have sufficient information you have several recourse and this one is to go to the  perceived infringer and demand an answer if you can't get it courts have repeatedly held you have grounds for suit but nothing was done here a lot of answer apparently right and so we're not infringing well i mean misrepresentation was suppose or want well if there was that would create a different case that's not the case well you're saying that where they've missed the boat was that they should have said when you said you're not infringing that should have demanded to know why yes and if they had asked that question reason for mr royce to deny infringement beyond the issues we've talked about here and one of its composition didn't contain and hydra another it's an undisputed fact that the they're supposed to find out whether it was in french or if they ask him why he didn't french and if he refused to do so you could sue just because somebody refuses to tell you yes really that's a sufficient precision investigation in under those circumstances i mean it requires diligence and following up yes but otherwise if you're an old pattern then you you have some leave your infring prisons as i'm not but i won't tell you that's a sufficient recent investigation so you can say no they didn't and now it's not right but there's a difference between being diligent in pursuing your rights and not being diligent in pursuing your rights and that's what we have here an utter lack of diligence and pursuit of right so my thought was the possibility of taking samples and determining on themselves i'm not sufficiently well informed to in the proceedings on the five three four patent that exactly what mr solmes said was true so what's the point the point is that by pursuing those  saying probably the dictionaries that refer to calcium self hate in hydride don't refer to its origin being from acids well that necessarily not because of the concept of acid does not occur with this chemical but i think that's that and hydrate is a modifier and in this case it is modifying calcium sulphur given the suspicions here i mean you hired a private investigator given that you thought  was received the suggests of the possibility of infringement was that within six years of the phone yes a yes i believe so that was not more than six year no i don't remember the exact date i believe was one nine hundred ninety eight there abouts are something of that in ninety nine i'd have to check the record for the for the time but the point is we did act we sent the investigator out and he was unable to discover this and if we look at the sort of deeper into this area into mr rice's on mammals what they were doing was heating the calcium sulfate in the chips and form to form the soluble and hydrate and in fact he mentions that in one of his memos and this is what led us to add the five five six mr rice said perhaps the mill temperature is wrong to form the soluble and hide right so this is not an ingredient that you could stand outside the plant and see if it's going into the plant the soluble form of the