fax ask this court to reverse the district court and render judgment for you to fracs on grounds of not infringement and or invalid it is detailed in our briefs i plan to focus my remarks this morning on the claim construction issue  the district court erred by considering the one hundred percent platelet limitation for one hundred percent in organic label and limitation using a special definition that there is no carrier this allowed any percentage under your construction it wouldn't seem that the components of them are practical or would have to add up to one hundred ten percent so the claim doesn't permit ten percent residual moisture that's right and that was a confusing issue a construction but it's important to stand the source material for these vermiculite layers as described in the patent is vermiculite leaks dispersed in water they're made by the very greatest and that's the conventional way that you only permits residuals moisture which can evaporate that's consistent with being simply a hundred percent platelets in water there are other dispersants the claim does not include permission to have a residual dispers it i understand your argument is that you're saying that that one hundred percent refers to before addition of moisture so you're talking about dry placement you're correct your honor although it could also be after drying of the plate layers that you lay down the sweat dispersion of from it to light if you drive the water off and then you can have one hundred percent platelets it is a practical matter you can have ten percent residual moisture because it's hard to it off although it is possible to dry that water off and measure the platelets alone and come up with a one hundred year saying that even after drying you have one hundred percent slightly after drying the claim requires that if it's fully dried and the residual and that is all that is permitted the critical issue in the case is can you also have five percent of an organic additive and the clean language the intrinsic evidence is very clear that you may not have ninety five percent platelets and up to five percent or ever ask the court to define what those other terms mean repeatedly or honorine especially to make clear that five percent silicon additive is not permitted we did that in the claim direct no ma'am we did not the parties did refer to the intrinsic evidence in the specification which is that the vermiculite of the platelets can be defined by the specifications reference to the w r grace material and the parties did refer to the properties as explained by jeffrey r grayson i can draw your attention to appendix seventy six fifteen if i may this is a document which the specification at least indirectly refers to in specifications says that suitable materials are the light from w r grace including microlight nine sixty three and might relate for x in column three line forty six what you see from this description is two columns under the table on the left side there is a description of non formulated products and the description says the non formulated products which are apt to be nine o three h g s and one twenty three are one hundred percent inorganic dispersions of mickey light and water so that's tells you what one hundred percent means it's the vermiculite flakes and water that's all there is on the right side it describes formulated products like what is used in the cues product and those are  this is this is one of the few feminine thing i have to confess and this record was difficult to follow in terms of what it was the jury was being asked to determine but doesn't that say  improve wedding and or increase and product water resistance does any of that indicate that those products also be dispersants well we say no it does not  history is not actually a clear disclaimer because what it was attempting to distinguish in the prior art was different from what what you're arguing assisting so well i'll get to the argument disclaimer in a second i'm talking about the amendment of st which is the amendment is found in appendix three seventy four i don't think the court needs to look at it it's undisputed it cemented the claim from a layer comprising platelets to a layer comprising platelets in an amount of one hundred percent  so that was added during prosecution they narrowed their claim to the unformulated version one hundred percent platelets and water they narrowed out the formulated versions which were described in the specification eighty five percent ninety percent ninety five percent ninety five percent that's us that was specifically narrowed out of this claim by a man and it is your argument that dispersants and carriers are mutually exclusive well my primary argument is that that is the construction issue that should never have been reached rather any amount of an additive we view as less than one hundred percent platelets but that's gotta be i mean but the rest of that language does and some ambiguity right residual moisture so one thing you can have some water left over from the process that's just a practical reality that when you lay down flakes and water you're going to have some water left over that is the only thing the claim permits residual moisture water that's not inconsistent with one hundred percent flakes in the water it doesn't say you can have residual silicone it doesn't say you can have residual dispersive there's description in the specification when they had the original disclosure which was broader than one hundred percent where they said well you could also have residual dispersants but they're narrowing amendment went to one hundred percent water so if they had wanted to have a claim that allowed residual dispersant the claim could said residual dispersant it does and it only allows residual moisture so our view is to the amendment of the first of all the plain meaning is it's straightforward it's one hundred percent flakes a jury can understand what hundred percent means undisputed in this case there were less than flakes only ninety five percent if you go to the intrinsic evidence then the amendment makes it even clearer that it was disclaimed down to one hundred percent pla best case and does talk about other formulation with less than one percent it absolutely does and those were disclaimed away and narrowed by virtue of the amendment ok i mean that's undisputed the this claim does not allow eighty percent percent flakes and that that was useful because getting rid of the silicon would reduce the risk of potential toxic admit that was toxic to the missions and during burning  carrier that means you can have any percentage of flea and any percentage of any other material as long as it's not a carrier so that is a special definition and a broadening one it is found only in that parent's specifications and it was eliminated in continuation practice the public can conclude from the striking that special definition from the specification of the patents to only that it does to your position is not so much that it's cork aired in even considering it but it erred in giving it i think only accurate it's not it's not my view that a court could never look at language in a parent that's been removed from an asserted pattern but certainly under the facts of this case where the language is used for lexicography because it was a broadening and special definition not ordinary meaning where it doesn't make sense when applied to this invention and where having been removed from the specification the public can't possibly be expected to say yes to the language that was stricken is the special definition that will apply here that was  never look at language an apparent that was removed and stricken from an assertive patent but in the context of this case where it's being used as lexicography to provide a special prodding definition and it was stricken from the application of patent that seems highly problematic and then when you add to that that it doesn't even fit this claim so the claim in this case requires that the permit to light be bonded to a palmer film and he simply that is a carrier that's what a carrier is makes no sense to say in this invention there is no carrier in addition we've got the claim being narrowed to one hundred percent less so that definition there is no carrier doesn't take into account narrowing amendment during prosecution it was also in that specification while they were prosecuting a very different invention from the one claimed in this case under those circumstances it was not proper to use specification rather than having the same specification as correct and it doesn't refer to carrier material the nine to six specification does refer to fiber material and the desire to avoid that so it's consistent with the over twenty seven parent application  oh twenty seven doesn't even contain one hundred percent by weight limitation it doesn't contain the limitation in a claim but it does describe the one hundred percent by weight limitation in the specification of the zero twenty seven so the language is is taken verbatim seven is supported not only obviously in the zero two sevenths specification but is supported by the prosecution history of the nine twenty six patent because in the prosecution history the inventors overcame th material in the in the patent he said we don't want carrier material it makes it too heavy into brittle and so they disclaimed layers with carrier material the ny twenty six specifications said that including fibers which is a carrier material that's a cloth makes the material brittle and too heavy so they moved away from it in the specification and then the claim language itself also supports the idea that one hundred percent by weight is relative to something  as you pointed out judge o'malley there is a the limitation includes one hundred percent by weight as well as ten percent more extra and the way judge andrews reconciled the one hundred ten percent was just say that one hundred percent means it's relative to something it's which it i don't know why it didn't get into the claim language because of but mainly because the prosecution history made clear that which is what was being overcome was this claim generally is the order in our political layer has t a there was a definition of carrier was present cloth or paper and there wasn't a dispute at trial the disputed factual dispute a trial was is the additive is it is it dispersant or is it a resin and the jury found through there was substantial evidence to support the notion that the additive in the accused product is a dispersant which is permitted under the claim and the and the nine twenty six specification itself allows for residual dispersant so that's you're there is similar language in the zero to seven judgment and that's a that's consistent what you get from the intrinsic record here is a consistent picture of inventors distancing themselves from carriers they didn't want indication that they don't want to carry or so the entire intrinsic record here is consistent with the fact that they're trying to avoid carrier i want to address my friend's first argument where he said that the somehow that the w  appendix fifty two column three line forty four says suitable vermiculite materials available from w r grace under the trade designations microlight nine sixty three microlight h about and you know organic layer right correct but your view is that whatever turns a residual could be organic material if it's not a carrier so it has to be one hundred percent platelets relatively very insistent with claiming inorganically it's consistent because you need because it because you can't have you can't have in organic platelet material and there it is recognized that there can be dispersant or the all of the intrinsic record is geared toward avoiding carriers and it's that this is the district court's method here was similar to the district courts method in the v formation case in which the court it wasn't getting a special meaning it just went back and look at what the person of ordinary skill would have viewed and said that the term means as it did there the issue was release a plea attached and the court said it means easily attached that also means you can't use r to attach the bindings on because rivets are permanent and the district court in v formation got that from looking at the intrinsic record just like judge andrews did here he went to the intrinsic record and saw that you're saying that everything about this happened is to ceramic fiber is much more forest brittle and and fry all its distinguishing its invention from that from a layer containing carrier material like the ceramic fire fiber that was and the  tompkins material so again holistically the zero twenty seven had the prosecution history here the specification here the claim language here and the continuation all support this notion that there can't be  meant that you're asking why we didn't explain what carrier material is we didn't need extensive governance to explain what the what the construction of one hundred percent by weight meant they had in transit record is consistent there it presents a consistent picture of disclaiming carr claim we don't want anything other than residual moisture what you think we should read it says one hundred percent platelet material and ten percent residual moisture and so the way to reconcile that hundred ten percent is to say the one hundred percent is relative curator the the final thing that i just want to focus on because my friend mentioned at the continuation application supports the court's claim construction he referred to it as the child patent and that's it page appendix page seventy six thirty seven here at trial is undisputed was used interchangeably with resin with that he said it's a binder means a carrier and so again the inventors are consistent in their disclaiming carrier material and instead focusing on the material relative to carrier material so you've got a parent you've got a child you've got the prosecution history and you've got the specification all consistent with judge andrew's construction think don't do anything to limit the disclaimer that they have to go from less than hundred percent to one hundred percent that is exactly what they disclaimed i think this is really in many ways a public notice case and i know the patentee would like to  now say well we get to tiptoe up to the line of tompkins and anything that is not tompkins we get to keep within our claim that's not fair and that's not how public notice works they limited their claim to one hundred percent and they narrow their claim to one hundred percent they don't get to now take it back and say well we really wish we had a layer that does not include the fiber of tomkins judge anders actually did recognize that his we put him on notice that claim construction that constr clarify your construction and make it clear that silicon additives are not permitted that is the decisive issue in this case and that is what was narrowed out of the case that is the plain meaning of one hundred percent that's how so you're saying th problem we did ask the judge clarify even after closing arguments but we asked him before in summary judgment at the at the same all  it is a huge problem that the judge adopted a construction that was ambiguous and confusing and the plaintiff did dance around with carrier and what is carrier mean in our brief there's an extensive discussion of how their expert tried to use that to distinguish war mont in a way that we found unsupported in baseless you can't reconcile his construction for purposes of infringement with the construction that was used to try to distinguish more mine and it was a highly problematic construction in this case as a plain meaning it's a straightforward case one hundred percent means one hundred percent undisputed sure that the layers made of less than one hundred percent platelets so we were press the court to reverse and render all right thank you you thank