the space is configured to prevent interference between the cassette and another structure such as a pale the district court originally construed that way and got it right the p t and denying institution  construed as the same way and also had it right and perhaps most importantly the specification describes it and the exact way the embodiments discourse in the specification make very clear and the sporting description to complement that interfering space she's need to complement that clear space allowing them to mesh perfectly well together that's what the clearances the problem is on summary judgment the district court shifted that meaning set of requiring a space that prevents interference between a cassette and a pail on summary judgment the district court mal require that there be a space between the cassette and another structure response to sort of its realization that after going construction the party still had a dispute over the word clearance and i likewise have to agree with you that the new construction excludes if you're seventy one thing that  interfering members and it was that discussion where the applicant ended up to be examined ended up saying that the figure one embodiment was movable portion fifty eight dollars quote appears to have nothing to do with close quote the bottom in a figure seven and in that regard the examiner was exactly right the interfering member and figure seven which is part of the pale is indeed different than the pale structure and figure one none of that impacted the cassette the th twenty patent is directed to and claims the cassette and the quince and that quickness in the cassette works equally well with both figure claims through this requirement that's not described in the specification where the judge required a space between the cassette and the pail that's not what the figures show that's not what the specification describes in fact the judge explained that if you have a pail that takes up the clearance space or fills that clear in space or replaces the space that was otherwise there the judge says wall of a sudden now you didn't have a clear space after all respectfully to the district court judge that makes no sense it's akin to saying if i may use an analogy that there's a parking space the parking space allows a car to come and park it prevents interference between the car and some other structure that might be in the in the parking space under the judge's new construction the judge says no there has to be a space between the tires on the car and the asphalt of the parking space construction the pail is indeed not claimed it's not part of the claims now the judge originally construed clearance to be configured to prevent interference between a cassette and another structure of a champ or another claim says it's entirely located and a bottom half of the annular wall that the claims make clear that the clearance can be just discerned and determined simply by looking at the cassette page sixteen of the blue brief is that's part of the pale so i have here in my office and the green portion is d a what we've highlighted and brain is a physical portion of the pail that sticks up and the whole purpose of that is if you were to take that same cassette shown on page sixteen and flip it upside down the cassette that interfering number on the pail would cause the cassette to rise up above the top of the portion and the top portion including a tear off outweighs projecting section that's what the claim talks about the judge during claim construction said that all three of those parts of the cover ha to be quote a single structure quote a single component a single piece the problem is the specification no where says that the claims don't say it the specification doesn't say it the prosecution absolutely has an inner portion and a top portion in a chair way section he said on camera judgement those are executed simply because they are formed from two pieces rather than being a single piece but the claims in the spec and the prosecution history never straightforward case to have a clearance two things must be clear of each other and not touch and so the space between two things is the very essence of clearance now that was the district court's conception of the clearance from the very beginning and that's why the court included the language configured to prevent interference into the construction and what's going on is as well now wants to ignore the convey geared to prevent interference language under the guise of arguing a reinterpretation and there is no reinterpretation here and we know that for a couple of reasons if you go back to the district courts original construction the district court analysis of the intrinsic record makes clear that the court believed that the clearances won a space two adjacent to the annular wall and three configured to prevent interference between the ano wall and another structure now in making that conclusion the court recited the concepts described by this disclosure are depicted in figure one that today p p x twenty four the court also quoted the purpose of the clearance in figure one in saying that the purpose of the clearance is to allow the closing mechanism fifty eight of the device to properly function by creating space for this mechanism to move through now picking up on judge hughes this question if you want to look at page fifteen of the blue brief this is depicted there where the mechanism fifty eight dollars which is pulled out and in a highlight and yellow that structure of the pale that is another structure that is another structure that the parties have agreed is another structure in this case and it  moves along that dotted line path and the point is is that that that structure fifty eight cannot touch the cassette there must be clearance or space between fifty eight and the cassette otherwise as the patent explicitly so from that analysis alone we know that the district court is conceiving of a clearance as in essence a buffer space a space that separates the annular wall from another structure and when that space disappears there's no more separation pile no i think it does require that the court's original construction given the configured to prevent interference language requires that there be space between the annular wall and another wall there must be clearance between between that wall and another structure in other words there must be space between that wall and another structure and we know that even further because of the very critical an pale so there has to face that is required have to exist between the cassette mother structure but bed when the cassette is installed in the pail why are we now i struction well so again our our our position is and this is clear from the language of the construction that the another structure is a structure in the pale and the party did not dispute that below in fact as well affirmatively stipulated to that point below so this claim as was construed in a functional way in relation to a structure that is outside the cassette and as well may have a problem with that but the problem goes to the configure to prevent interference with another structure language which again is part of the course original construction and so  the point here is that as well cannot agree that the configured to prevent interference language is correct and then go back and pretend that it doesn't mean precisely what it actually means and to more specifically answer your question you cannot know whether the clearance is configured to prevent interference with another structure in less you insert the cassette in the pail and the district court actually recognize that fact because as well made the same argument below and the court said well if you're just going to hold the cassette in your hand in the abstract away from the pail then it's true that every single cassette in the universe has that space you can't know that it's configured to prevent interference between another structure until you actually put it in relation to another structure and on that point i want to highlight one other thing that counsel said during his argument he said that the this the cleric can be discerned simply by looking at the cause that and what's notable about that is that i directly contrary to edge wells arguments below as well as expert below took the position that the test for interference is quote whether the cassette can function properly in the pale that and fifty as well new below that you had to put the thing in the pail to determine whether there was clearance that again is highlighted by the fact that in responding to one of munchkins primary prior art references which the quote that registration simply depicts the cassette itself and lack the disclosure regarding quote how the cassette works or what it is to be used in and quote and it therefore concluded that that registration did not  change that position to change that position because they need to try now to get around the configure to prevent interference language and i want to highlight one other thing sorry can i interrupt this is just to i want to ask you about these drawings too and see if you can explain them to me i suspect you have a different view i'm looking at the one from page i'm back on page fourteen and fifteen of the blue brick which has the yellow thing which is fifty eight i'm not sure what that exactly is is it your view that that that structure fifty eight won't work at all if the cassette touches it or rest against it that's that's correct your honor and that's why the baron and where in the record are the patent or anything like that suggests that it won't work if it touches it because it seems pretty clear that if we're looking at figures that it will work even though it's resting on the specific interfering member yeah and so is the pattern at six hundred and thirty eight through forty says if the chamfer clearance were not provided the cassette thirty would impede the movement of the movable portion fifty eight and well wait wait can i stop you there because i'm not sure that that i understand what you're saying i mean if that shows just touching will do it or if it's the old style  the don't have any kind of cutout at all and that seems to me to be two different things if it's fully squared off instead of having the triangle cut out it might completely impede that the eight but it could just touching one tip of fifty with contact that is the only possible way that any of this makes sense otherwise otherwise i've got a situation where i can put it in the pail and it can touch i can put it in the pail and it cannot touch i can put it in the pail and it can gra against where i can put it in the case in the pail and it can it can completely impact why i just don't understand why it has to be actual space rather than just touching but still allowing it to work particularly given the clearance were not provided because that would impede the movement of the move abortion fifty eight and again the point here is that you can't have a cassette both prevents interference and allows interference and that's exactly what a construction the construction that that as well as urging right now there's just no simple way to put any limits on the scope of the clearance otherwise and i think i heard counsel say that you know the cassette would sit too high in the pail if the clearance didn't match up perfectly under the figure seven and bottom it well the problem there is that the clearance is not directly correlated with any sort of fit inside the pail i can craft a clearance and angled wall in more specifically an angled wall in the bottom half of that clearance at any number of angles and make them fit i can shallow the angle i can steep in the angle i can cut off the top i can just make the cassette a little shorter and i can make it fit in the pail so the clearance doesn't have any direct correlation on how the cassette actually fits inside the pail and again that's one of the the big holes in as well as position is that this would just swallow completely all that all at once that sounds to me like almost like an indefinite argument about clearance rather than reading the term in light of the specification and the purpose of making it not be inserted upside down i get that there's a bunch of different ways craft that cut out to make it fit and make sure you're putting it right side up but that doesn't mean that it can't touch it just can't it has to fit in there and a way that will make the pail work i guess we would ask you know what is and it's conspicuous that as well on appeal never argues that the accused cassettes actually do prevent interference square that language bowls with the purpose of the clearance in fifty one and with the purpose of the clearance i'm sorry the purpose of players in figure one and the purpose of the clearance in figure seven and that was the point of the prosecution h again because this is claimed functionally in relation to a structure in the pale the p t o specifically recognized that the function of the clearance in the figure one embodiment is completely different from the function of the clearance in the figure when those two things are mutually exclusive they serve two completely different purposes one the figure one and body meant is really about a clearance that creates space between two structures the other is actually less about space at all it's more about structure and making two shapes complimentary to one another they're just two completely different things and if you want to have them under the same umbrella again our position is there's no proper construction that would put those two those two constructions together the two embodiments together but to the extent you want to try to amalgamate those two embodiments and have them fall under a single construction you have to get rid of the configured to prevent interference language and as as not challenging that language on appeal and that's the entire problem position is the claims make that clear themselves but also the specification at two hundred and fifty nine thousand three hundred and sixty two dollars this is quoted by the court the district court in its construction so the out really projecting section twenty eight has an area forty of reduced section connecting it to the top area twenty seven dollars a to weaken the material and allow it to be torn off that's really the crux of the matter this is this is like a tear off tab on a milk jug this is not something where shrink wrap goes over the top of a different  different cover and you can call that a tear off the very essence of the chair opposite you tear it off from the cover itself and that's well supported in the intrinsic record lastly on the on the doctrine of equivalence issue in terms of the case law our position is you know limitations that specifically recite the relationships of components to one another those those limitations must have equivalents and in this case we have a construed claim that requires and recite a specific relationship between components specifically that the components of a single cover be made of the same structure and you simply can't have an equivalent of that in a different structure it's literally the opposite and i  respectfully i disagree i do not understand that position at all the queer it's and the cassette is exactly the same i have a cassette here in my office i'm holding it up i can see the clearance and it works equally well interference between the wall with the cassette and another structure such as the peril as i mentioned in my opening argument the claim for example claim one goes on to explain more information about what that does how it's configured how it's positioned that the clearances in the bottom portion of the central opening of the cassette it explains that it the limits a portion of the volume that has a reduced whit relative to the volume above it the claims some of them describe the clearest as being in the shape of a champ for all of these make clear that the cassette itself has this clear space sure its purpose is to prevent interference there is no discussion at all of having a space between a member of the pale and the  cassette the phrase greys against came up and during the my colleagues argument indeed and figure one that movable member in yellow the movable member very well may graves against the cassette