city good afternoon me it please the court the key focus of this appeal is the construction of the clean term randomly prime's p c r haven derived r c cheek this is an issue that this ennobled based on the intrinsic record in this case the district court got it wrong and should be reversed based on two fundamental principles of clean construction first inventors can be their own l of the specification could you tell me what part of that defines us randomly produce a few years of code twelve blind forty five and the it reads as follows the p c r generated r c g's are randomly set of reproducible subset of fragments that all have the same sequence at the end but not in the middle so they can be randomly primed and still identify  be millions of fright that have the same sequence at the end and the same sequence in the middle along with another hundred thousand or so that are like that you do yes you do amplify up more so that when we we don't concede that so are you saying that you were for your own lexicographer and you came up with a definition that might differ from that of what one skelly art would otherwise assume was meant or are you saying somehow that you came up with your own definition it just simply so happens that it's also consistent with ordinary meaning that term you try to be clear we came up in during the prosecution we said there is a definition of a code twelve that we're incorporating into the claim language that has a structural definition based on the ends of the fragments and differences in the middle and that's all that's the way we define half of metrics argues that oh there's a well understood meaning to  prime we disagree there was no actual finding on that they were the only expert testimony i saw was the expert testimony from their actor director kwok who pacifically defined what he thought the ordinary custom meaning would be to one of skill in the art and you didn't put any contrary tense money into that what we didn't because what he said is it's not their definition it is not the definition this record of what he said is in this case i agree the inventors came up with a special or not to be consistent with what one governor still now would otherwise understate there was no extrinsic evidence at all our definition is based on the intrinsic evidence during the prosecution's history the inventors page eighty nine sixty five using the word definition five times saying we're picking up a definition and we're incorporating it into the coins and was using their definition to distinguish the locus so as a result your argument is entirely dependent upon our conclusion that that is a definition and that it is a specialized definition in the specification and i guess you say elsewhere in the partition history that that the we're bound by everyone would be two thousand and five when i think that means it's got a bunch of these ends and that's not going to finish and what he conceded was you know that if i was sitting here that sort of what i would come up with but the inventors own twelve line forty is the question is whether that was overcome by adopting a definition that is more limiting during the prosecution i might respond your honor by saying that all four of those methods when apply will generate subsets of fragments that meet the structural definition whether the primer has arbitrary nucleotides in that or whether it's precisely defined it will generate a set or fragments that satisfy the structural definition will we will disclaim that we are not reading on lookers specific but all of the embodiments that we teach all will generate something that meet the structure of definition and that's one problem with the district court construction my reading is by taking a characteristic that appears in two of the embodiments but not the other two making it into a clean limitation reading it into the cooling he has basically excluded two of the this was one of the problems we had is that the critical portion of that prosecution history was misquoted biathlon accounts of the district court below in its reply brief in particular afternoon trix told the district court that the inventors had you in any case unfortunate we had a three year delay between when the market case was argued and when the district court issued his opinion when he went back to simply picked up this random primer composition of the i r s examples it eliminates the entire adapter p c r embodiment and it notifies the corresponding dipendra cleans related there too for all those reasons we think that just accords construction cannot be correct sounds like you'd like to save the rest of the time i would your honor with respect to remaining issues i would respectfully recruit refer the court to our briefs and to the rest of them thank you mr ro there is no issue at all this argument obviously that was raised to the  and the physically that landers to find the randomly primed p c r derive our c g as a population of fragments that share common sequences at or near them to five times three times so if if that's identifier even if the initial selection is random that's true even if even if the initial selection is random as long as you using the same sequence random sequence in your primer you're going to get  the common end because again only one primary definition does not work at all when you use more than one primer and the specification of course talks in spades about the use of more than one prime or column examples of methods that don't involve prime and which may have been surrendered by the claim amendment during the prosecution you're absolutely right that's where the plaintiffs go off the rails is they're trying to say well there's a definition and it covers all the embodied they surrendered everything that did not involve random prime which includes little of the back to talk about what they are what they did include random a portion of the primer is amala guess with e g fifty percent seventy five percent ninety percent ninety percent or more identical to the consensus nucleotide sequences of an iris of the subject so they're saying diverge only you can use up to fifty percent arbitrarily selectively types so that's what that's what that's the random way of doing interspersed repeats sequence p c r now for adapter p c r if we go to true at all and with adaptive p c r you can either do it in a nonrandom way or you can do it in a random way and you can do it in a random way by if you if you look at page seventeen of the earth their reply brief they show that if you use a certain they show just using a primer that attaches to one part of the adaptor but if you used the entire top part of that adaptor as your primer which is perfectly reasonable to do you're going to be including those three specifically referring to the peach forty one of the blue brief sequences that could still be having common sequences sort of primers have a common sequences could still have randomly chosen the delta prime or whether they have randomly prime but they don't they all  generate destruction afraid right but but my statement is correct is it not that even if i have common sequences when you get done with it in a selection process if there randomly selected th statement that says oh you need to really do this to make this invention work you need random nucleotides in the primer you don't get that in fact you get just the opposite you get the teaching of four different embodiments two of which do to the full scope of the meaning of that there has been no surrender of claim scope and again i would point you definite trix most recent move twenty eight letter related specifically state we are not relying on a disclaimer of claim s so if you agree with us that there is a definition that the inventor special definition is and five times in the prosecution history has been adopted into the claims that we were entitled to the full scope of that covering all of the embodiments including the to the sequence of the prime or as taught in the past because all of our patent picks up prior art references none of which ever used any kind of random primers were the adapter p c her body