if we get a correct claim construction then we are complements are correctly defined then what we've got to do is go back and analyze in the infringement because we can't win under the district where it's claimed construct ok so that obviously preserves your assertion that this trick or adopting the wrong claim construction but it seems to me that's the only issue for example you know you didn't say anything about discovery or anything like that you said we can't win on the claim construction so enter a fifty four bit we have one claim left that was not affected by judge dallas claim construction that was claim fifty one then the issue of claim construction i may be mistaken your honor i think it's the scope of the infringement you decided that you said we can win on the client instructions on or a fifty four b why you're stuck with that if we correct the claim construction then what i'm saying is that i'm saying what and maybe you're right maybe this is a question for just the district court when i thought the claim construction went iraq i well that issue is clearly before us but it seems it would seem to be the only issue before us ok these issues about discovery and other things you seem to have given up when you asked for the fifty four b service it certainly wasn't my intent i thought that one of the things that hampered the court below was that it did not avail itself of some sources of extrinsic evidence which i thought would have helped it understand the patent better than it did i do think you can reach the correct conclusion on the claim construction by looking at the patent alone and i don't think the district court did that so you may well be correct that that's the only issue that you have to decide your and everything else is if we go back and everything else is for the district court we're going to be right was that's a discovery issue that you were arguing about related to the potential for other infringing products that's correct it did because we should have to do is claim construction well i i always like to know everything i can about the processes that are infused of infringement and i as a trial lawyer i hate to amend the complaint to say that boeing is using a machine made by our camp and that we have a basis for believing it infringes and then get absolutely no discovery whatsoever i also thought that the claim construction depended in significant part on things that were without any adequate evidence or basis maybe no basis at all for example if there wasn't wasn't believe that's correct your honor it was and then the ruling is not relevant to any other product that may exist arguably would be the subject of another of another process another that i don't even believe there's  a single powdered alloy that's the term that the defendants used in the district court below their only basis for it was lawyer argument and a declaration from a declarant who gave no basis for his knowledge and have no experience with the process and in our reply brief i think we pointed out that came along after the process was developed by dr are solid since retired so i don't accept the notion that there is a single powder now or not at all but we have to accept it for purposes of this appeal right for the purposes yes i suppose i do i just do not think that it that the public record that the evidence that we have available to us demonstrates that a single powdered alloy in fact exists in that and its processes i don't think it's not  existed in different phases and that those different phases can be different components consistent with the claim that's that's correct your honor because if you look at the face diagrams figure two and fi four and i don't think the district court gave adequate attention to argument about phrases i think the court mentioned the my golly faces as mentioned once in the patent phases aren't mentioned wants to mention numerous times in the face diagram in the box with one hundred percent a on the left and one hundred percent be on the right shows you what can happen as the relative compositions of the two change and what you can hamper our complex what why why are two different phases of the same different portions well they are different in at least because one is a liquid and one is a solid but i would satisfy the claimant to be different portions of ones the lips ones of salt yes i think i think they would so basically the question is whether we should say that different portions of satisfied by different phases yes i think the district heartless incorrect i've when it reached the conclusion that you had to start with something that was not elmo and i don't think the supports that at all i think that specification says the contractors claim fourteen that mentions that as well but also particular that structure of columns and nine s and also mentioned repeatedly that you can use phrases and the phrase diagrams are exactly that the show well it depends on the temperature two and i think one of them with both of those involved a liquid and a solid my recollection is that one of the dependent claims indicates that you can have a mixture of more than one power so you'd have to solids in that particular instance we were to follow up on juries question where where do these figures or where as a specification show that having different phases of the same alloy is within that two portions claim calls for two comports i don't see why they are not different components because the pattern doesn't restrict the component to being a if you can also have a solid which is just me in which case you have a phase which consists of just eight the pairs of where is it show that's the problem my recollection your honour's it's figure two and except to say that it that the inventor was describing an embodiment of what he believed his invention to be i don't know that i can say it contains precisely that sentence your honor i do say this i think it was a good reason that's a good reason for the judge to have given more consideration to the declaration of mr lawton than the dead and i think that must be a good reason for us to have asked dr russell about the subject as well this is a complex technical area  examples and i don't see how he limited is invention in doing so is dependent claims give further variety to his invention and yet we have an invention that's been confined to a specific construction by the use of words that don't appear in the  that is capable of elbowing subsequently a column to line sixty five continuing to column three it refers to the dispersion as being non and b the second time on b l of a and b why don't you infringe because in the claim we start the claim calls for two different components to discrete things that are on the l a when they start when we started with our that could be one component of a two component mixer so certainly if we started with the titanium alloy and then we added something to that then i think there could be potentially infringement there yes but we didn't do that not with the l is that our issue of people are saying is you can't a and b can't be the same alloy when you start correct that's because the specification teaches that they are on the yellow if i have in my hand so that doesn't that and that's confusing because there's no reason you can't that during the course of the process at least part of the starting component changes phase at that point there are two components well if you have a specification effect teaches expressively i believe it of different chemical composition that is outside the claims because well it certainly isn't outside the description of the preferred of audience which says this requires a fish molecular elemental mixing between components to result in resulting product may be physically different from the the the resulting alloy it may have some chemical difference and that it may be some may be able to be dissolved differently or somehow affected are not alway with one another at the start as but wouldn't that be true if the two components at the start or at least at some point during the process consist of a  facts in this case and you correct me if i'm wrong that the accused brought some point starts as a powder and then is its changed in phase and then at  the end of the process is completed oh so that at some point during that process there would be the starting outer material and the change phase portion that's undergoing but it generally i think your description of the process is more or less correct what happened was there was a say a plate of solid metal and a laser would come along and would resulting metal would melt and it would build up a little region of metal that was composed of the very same metal now you phases of water but this water when you start as snow and it's water at the end when it melts and freezes together is a block of ice it's still war that's true yes so you could analogize it i suppose some of it we had we had solid metal and it was molten and then it reformed into sort of being a power reform into or type airplane parts but it was an alloy to start with colby it in powder form ye sure that's true because if i understand correctly the original powder here it can be a mixture of phase a in phase be in the phase a the is different from phase be in the median of the material another there's no actual evidence of that your honor but that's their contention that well that that is their contention i think that contention gas ok what i'm having difficulty is characterizing the change where the content of an a t m content of a molecule or particle changes  a and content y no your honor it and big and also the claims as written would not subside that that instance let's say you add a and b and they were slightly different and vanadium content the claims so i have a block of material that's it is an l like and it has a little crystals in it regions in it that have slight the similar it's not completely uniform but it's got a little regions or pockets where the medium with another component haven't we gotten to the point with one of the sodding materials a and b can be unalloyed so didn't the district court or whatever in fact that the component a think that's what the district court said that it is not already alloyed with the of a component exactly exactly the is an important word with the of a component yes so it can be it can mean itself formation is different so they're in different phases actually that's their argument you are but interacting with her as i said i don't know whether the phases changed but if even if they did change that's not an instance of infringement because they were not components that work not previously all white with one another the district court didn't say that the components themselves can't generally be l o s and they certainly can there's expressed teaching so that in the because the under the district court's correct claim construction the two components cannot be l a weight with one another the specification expressly teaches that the two components are dispersed there are dispersion of two different things not already with each other so slight changes in the base composition of a preexisting l way that cannot count so it doesn't matter if the phases change even if the phases did change  so if if i look at claim one the steps are providing a dispersion containing complements a and b the example given that column nine lines five to twenty one a soluble in one than it is in the other they are different forming the dispersion into a layer well we'll get into that if we go back to the district court where it you argued to the district court in connection with the claim instruction that two different portions met two different crystal structures i never used to my knowledge or honor i never used the word that portions represented we never used the word portions but that like mr  address but under his declaration headrest this but i don't understand that that declaration was the minute actually the plane instruction was that it was submitted in connection with the response to the summary judgment motion and now i grant you i don't think i used the word portions you are aware where did you argue than you trying to apply in construction that he should and the portions in terms of different response structure in response to the defendant's motion for partial summary judgment of not in particular our response to that motion in terms of a claim construction and yes i believe so what i cannot tell you that your ear there was a luminous briefing on this issue and on that on the refusal of discovery just briefly to touch on that i was given twenty i was given eighteen business days to examine an unknown number of documents in an unknown number of different locations analyze them copy them depose people get transcripts and write a summary judgment response all this came on the fact came on the heels of the fact that i was recuperating from surgery at the time it was an impossible task for any human being to accomplish if you look at  where i come out at is that claim describes what occurs in column nine and what occurs in what we know about the defendant's process i agree what we know about the defense process isn't perfect a change of phase i don't know how they can say that when you look at a phase diagram and watch the curve on the phase diagram representing homogenization owing is the party that did not read the phase diagram correctly as we pointed out a reply brief i don't think this is easy going further phases you