portion to reject thirty five and thirty six which had the flexible two limitation showing the examiner did not think that claim thirty three the broad claim to tubular member had a gloss on it requiring that it be a flexible member though i suggest that the claim structure and either get a specification which i don't think is inconsistent with any of us the claim structure i think overwhelmingly supports our position what about the theory that the examiner is giving that you huge its broadest reasonable interpretation during examination without having a mind set and to what it really include iran or the aid to patton in which that office action took place had a claim just like claims three in the six four five patent said said flexible to member the examiner if the examiner was following a logic of the district court the examiner would have read the broad claim to member as a flexible to a member and could not have done what he did so i submit that the basic rule that  examiners give the broadest reason the target taishan does not apply to this case because the broadest reasonable interpretation would have put the same gloss that the district court put on it if the district court were right and i submit the district court were wrong and if you look at all the claims in the three patterns you will see i think that our position is correct there are fourteen independent clients and they reside to be other member or two member and those claims and forty four merely cite the tubular member comprises a flexible to portion and a rigid two course why is that significant is significant because our been marriage or argues that the where by clause in jackson additional limitation into the dependent claims in the other case these two claims inject no additional limitation because the district court construed to be their member to have a flexible portion and it to portion and that's exactly what the problem with that sealed air flow system then it is flexible to that's a dependent claim so their argument and whereby i submit is not well taken the prosecution history i submit is that it is clear from this quest for cation and from the claim structure that what the applicant was doing was he was selling here are all the aspects of our problem mention one of them in the in the in the generic lines the fact that it refers to a flexible to it multiple times is merely a reflection of the fact that that was one aspect of their invention but it was not the brightest  to be the main focus to have it out there to eliminate the heating of the fire problem under pressure and that was the basis for the examiners allowance of the case is clear from the prosecution history it's clear from the summary of the interview that the examiner focused on that and it's doesn't show that he wanted to cover that in the generic claims and his action in the prosecution makes clear i submit that he did not want to cover that in the generic claims and i see i'm please the court this is one of those rare cases in which the specification the prosecution history the extrinsic evidence and the claims themselves and  for directly to this claim differentiation argument also poor the district court reading of tubular remember to require flexibility i'd like to address each of those who are turning first a general question about the specification this isn't a case in which we are aligned soley on the fact that the specification twelve times were sites that two must be flexible and never ever has  far that the rotary union assembly of the present invention communicates through the use of a stationary flexible characters the present invention which this court has said repeatedly well there was language in libel florsheim about present invention but if you look at the patent in wife or child which is distinguishable from this case in many other ways as well what it says and it's to whine fifty nine of the patent issue a libel florsheim it says there according to the principles of the present invention and it then goes on to describe a particular one of provides in fact six of the eight objects in the specification directly address the functionality of a flexible air hose and it is not true all that the i mean it's not really relevant what the major purpose for major objective of the invention is but i submit that it is actually not the case that the major objective was the moving background there are several shortcomings with the president the state of you are the first one they say the rotary immunise and we used a ploy did these systems have a relatively limited useful life span before the resealed begin to leak and then goes on to explain what the bottom of column one and the first two paragraphs are column to that the problem with what is assembly of the president invention achieve these objectives as you say that's where the flexibility flexibility point comes exactly and in fact the district judge in the disproportion plainness coun palace council told the district or and this is on pages fifty one fifty seven fifty eight of the appendix in this case told the district court that rigidity of them to member in the prior car in their papers to the district or they knew that because mr brown the purported inventor was the president of our company at the time that the prior car patents were applied for he was criticizing the ninety four ninety nine seventy nine patents because they'd used a rigid two and although this court doesn't need to look at the rather i'm copying extrinsic evidence in this case in which mr wrong why himself for a conversation which he introduced to the district court for the purpose of revealing that he had this full scope of the invention at the time he disclosed into the engineer at the time after this happened and at the time that the prosecution was being conducted it would look the principles of invention were being practiced a that the only difference was that if you had an appropriate shield maybe you didn't need the apparently very modest flexibility there's nothing that really excludes such a change of interpretation is there there is precedent which says that there's nothing wrong with adjusting your claims to embrace potentially imprinting devices that make small changes invent a round in this case and this goes to mr downer's prosecution history arguments the evidence shows precisely precisely to the contrary that is what the prior to the examiners rejection of the original patent claims a preliminary and then that was introduced that added three different claims and there was a very highly revealing one paragraph several remarks which we printed pages twenty fifty one and twenty fifty two of the appendix in which the inventor explains to the examiner why what he's doing and why he's doing it now this is just fully discussed in our briefs but in that one paragraph he manages to get around to mentioning it emphasizing the flexible hose portion three top and concludes with the following sentence sentences by providing housing rotated lead mounted about the downstream portion of the tubular member asked such a configuration has not been found in the prior are the new claims have been added to cover such an assembly without reciting the rigid shaft member as being a separate element of the flexible hose method now with respect to the claims i mr downer has focused a lot of his argument on claim differentiation and i want to  east clear as i feel about the following way their construction of to be remembered ensures redundancy in claims in every one of their three pals and our plane construction tubular member in fifteen one of the three added claims there's no reason to import the words the limitation of flexibility into their well look at come nine this is claim thirteen which begins on line three four as the district court noted in his order that is the first instance of the work to be remember it included clues in the antecedent the antecedent is obviously a lesser evil to them that's the talks about a stationary tubular member must not include the limitation of flexibility and i want to say to fix it up with first of all if that is true then they have no answer somebody is trying to defend a claim construction place based on a claim differentiation argument over the specification and the prosecution history in the extrinsic evidence this court has said it only raises an inference that can be rebutted by any of those precisely in the inventive act or purposefully this is a case in which the examiner told them that there was an antecedent basis problem they didn't correct that in claim three which refers to set  member they also they not only didn't correct it in the existing patent they filed two continuation patterns that have exactly the same what they call clearly errors play nine in the old one nine and and claim nine in the  got very careful to make sure that we were differentiating our claims but their argument their construction concedes that there are four redundancies over the repack and to this day they have not the certificate for correction of a clerical error to return to to correct what they say was a clerical error now our reading of this language and this is this is also important our reading this language eliminates all of these redundancies and while we're not claiming we're not making an affirmative claim claim differentiation we don't have to we have the specification of the prosecution history and its critics evidence if you look at playing fifteen versus played seventeen or  objection that i referred to earlier in the specification of quote minimizing anywhere on air seals that is caused by acting on this on line and it claims this being the sites that it does so by producing misaligned and during those periods under playing fifteen under the general specification there are instances of misalignment where the seal doesn't work perfectly the preferred body that actually recite we poles at that junction to accommodate a leaking air you don't have to be constantly inflating the tires every possible second you inflate them as the amount goes down but as the truck goes in and out of a there fifteen which refers to the union between the hose and axle at that one and is designed to promote the general purpose that the specification go to member but the fact is that it is obvious it is absolutely obvious that when you have the word said flexible to remember referring back to a claim that doesn't talk about  flexible to remember that that is an obvious mistake and it's a mistake that the examiner focused on the other claims and talked about it flexible to remember and and this  rational did not mention that the facts that the examiner did not focus on claims re and that explains why it wasn't amended so there is no redundancy if you do what is obvious and that is if you recognize reciting the rigid shaft member as being a separate our from the flexible hours member it doesn't say by reciting it says without reciting his converting that sentence into a positive when it is basically a negative  configuration talking about is the configuration in the first part of this paragraph which is what the claims call for namely a concept of providing a stationary tubular member extended between the fitting carried by the end of the know whether that was lawful or not but he was wired to record a conversation with the inventor the inventor never identified if that's where he was as one of the things he thought was possibly an invention and were all over that conversation is not even dated we don't know whether that was long before the application is filed he certainly is not supporting of the conversation of the inventor yardsale the the other person somebody versus american sanity the poor health of that the fact that an inventor makes statements prior to the final application does not mean that the claims are going to be restricted to those statements none of those statements suggested that any aspect of what was described was going to be part of the question and nowhere you can invent or say that the flexible tool was something he thought was patentable i see my time has expired it has expired