leading innovator in packaging for moisture sensitive items like diabetes strips that have to be kept in containers and keep moisture out of the containers this case relates to one of c s p patents the one three seven pa container and that obviously was filed after the proceedings in this case was before the court today where several of clarions arguments including the upper housing portion requires  and distinct so some of those issues were addressed in that later patent thanks to the the claim language that that issue here today is upper housing portion of the container and specifically the district  first elements is that the lid is attached to the container by a hinge at the upper housing portion of the container and then the claim goes on to recite the container base there's nothing in the claim language itself that requires the upper housing portion be separate from the container base merely indicates where on the container the lid is attached by hand and if we start with the plane ordering meaning of this phrase or housing portion the container it merely means the upper part of a container that houses the contents of these tests trips or whatever the case may be with the base in the limit there is nothing about any of those terms that we use every day and that one of skill in the art understands i think if we were just looking at the clay language in a vacuum you would have a real argument about what does it really mean to reference an upper house in portion sure that really does seem to be a separate element from the base of the container but as you know a patent is an integrated legal document so we have to read the entire patent after we've made the patent do we try to figure out what is the claim language meaning and so to me this case is all about the specification and all of the references the upper house and upper house all portions and even up a component where i think there's an argument that can be made that all of three of those terms are being used interchangeably by the patent draft so i  agree with you that we need to look at the specifications talk about that i just want to start with a plane or a meeting make it clear that there is nothing about any of those terms that require the separate instinct including including how from that term does not mean separate and distinct and if we use different language to refer to those two piece containers uses up or component uses up or housing and want to specifically uses and for housing it uses permissive language it says the language that both parties continually is in column for you have a one piece container or in another embodiment you have a container with an upper house and portion that can be molded separately from the base that permissive language is not any kind of exclusion or disclaimer it's merely pointing out that you can mold part of the container separately just like the pan talks about the container and lid can be molded together or separately these are plastic parts but where does it ever say that they can be molded together it doesn't expressly state your honor but by the permissive language that can be molded is not an exclusion or a disclaimer of one piece containers with offer housing  guess if that was the only statement in the spec then again i think maybe you might be on the something that's maybe that there's some equivocation there but then there's all the other references to upper housing and upper having portion that's  together the pattern does repeat that same phrase but it can be molded separately a few times i mean this is not a case where it repeatedly and consistently goes through and says this invention is a two piece container with an opera house and this is simply not one of those cases and the fact that it uses other terminology upper component sometimes to refer to piece containers we think weighs heavily in the fact that this is not we did not exclusively use upper housing to refer to a separate and distinct two piece containers there's various different language throughout the patent and there's certainly just the fact that you describe an embodiment with a particular phrase as a matter of law that that it's not enough to impart that limitation to the claim right there has to be some clear definition or disclaimer both the district court and clarion appellee have admitted there is no definition in the patent the penny did not define upper housing portion so they would have to show that there's some clear disclaimer and the fact that there's permissive language used that there's other language used to describe one of two piece containers this is not a case where there was a clear disclaimer in the specification of one piece containers is that you take it that are long lines instruction and understanding quantum terms and that terminology and why the specification look at the cases that appellate have cited those cases have repeated inconsistent use or where there actually is a definition they said this term means x and and there certainly were no permissive language in any of the cases they cited and i believe the eye for eye case that we have in our briefs is instructive where in that case in the specification they sad you can you know this chan be added without this contact and the court said that's not enough to say that you've disclaimed disclaim that that's not a clear disclaimer and tafe is like the corner where every time they used the term attachment they talked about a patch on the outside and they used in batt when they talked about apache on the inside and the courts that's not enough to read that limitation from the specifications of the claim and i think we have less than that here your honor we have a permissive statement that says something can be molded separately the plastic parts one of skill in the art knows how to make these containers and one or two pieces the crux of this invention relates to the ceiling mechanism that's used to keep the contents moisture proof that being the case can you address issue sure you're her basically if based on the court's district court construction district court found that there was no disclosure of any one piece container with an opera house in portion so if that's the case this court agrees with that and finds that there was absolutely no disclosure of that and we don't believe the disclosure dedication doctrine can apply because pfizer and the other cases say that the pad needs to disclose that that as an alternative to the claim element so we agree that one piece containers are disclosed but the district court's construction promise on this whole idea that those one piece containers do not have upper housing portions and therefore cannot be an alternative so what claimed subject matter to the public i think i take your argument that this disclosure dedication doctor and it's very very limitation element specific claim subject matter versus unclaimed subject matter and if that's the case then what we have here is perhaps a claimed embodiment and then an unclaimed think in johnson and johnson was very clear that the claim element was aluminum that was the substrate made of aluminum and in that it had it specifically disclosed alternatives to alone aluminum is preferred but you can use these other models for the substrate and in that case so there was a clear disclosure of an alternative to that claim element and this court's later cases made that clear that when we're looking at this disclosure dedication document doctoring you're supposed to look at that specific claim element and is there an alternative to that so i think the later cases have made clear what johnson and johnson and howled but we really think that those issues should never be reached because the the claim construction issue and that the proper construction of upper housing portion should be given a pla ordinary meaning and that this is not a case where a limitation from the specification should be read into the claim i think that would be a dangerous precedent to set and would expand the law in that area all right thank you very much you would two minutes into your of that specifications specifications clear it says repeatedly in the abstract in the summary of the invention and in a detailed description we talk about an upper house and portion or using that term in a two piece container in one environment the containers can be formed as a single close unit within jointly portion the container portion in yet another environment the container assembly comprising the base and opera housing portion can be molded separately so that's giving you too permissive alternatives there you can do it as a one piece container no mention of a for housing portion with respect that one piece container just one piece container or you can upper housing and the basics to be interpreted so we don't think the fact that it uses the words can be here in the specification make it any less clear that when you're talking about an over housing portion you're referring to a two piece container p premises its argument that offer housing portion of plan or a meaning of that is is somehow a location or an area i think what they're doing is really reading that word housing out of the claims and term i think the fact to that was added to this continuation in part it was an independent case the seven to zero patent which there they just said that the hinge of the lid the lid was connected to an engine and it was connected to the container only real difference between upper compartment and opera housing portion is of the fact that when they add it up for housing work into the one three at and it had a snap that connection to the base the upper component that was  original parent application seven to zero patent that was joined by welding those two pieces but they're both two pieces and i think those environments are all consistent if the if you're talking about upper component of the housing portion you're in a two piece container environment those pieces up or component an opera housing portion are not part of a one piece container when you look at their figure jan you look at the description of figure ten that's a one piece container it does not mention upper just talking a little bit about the doctor equipment so to sum up that point we think that the district court came up with the correct construction here view the claims are browsing portion in the context of the intrinsic evidence especially the specification and correctly construe that to be a two piece container where the upper housing portion is a separate and distinct piece from the base we also think the district court to grant the summary judgment was the right decision  as it's in the record c s v has conceded there is no literal infringement here one of the court's construction yard was under doctrine of women's we think that the disclosure dedication rule and  and in preclude application of the doctrine of equivalence on the juice product which is a one piece container just talk for a minute about the schools or dedication rule i think there it's pretty simple exact situation here i think we are the more aligned with the johnson and johnson case in that you haven't expressed the schools or the specification of alternatives these are tool turn of environments i just know another environment you can have the two piece container with the upper house and separate from base i think the analogy we pointed out in our briefs that it's it's you know two shoes are alternatives one being an oxford with laces and one being a loaf without you don't have to have corresponding structure between those to have those be defined as alternatives and they are expressly defined in this package specification as alternatives i don't think that the the the the pfizer case and in the other cited by c s p stand for your proposition that you have to use magic language or magic words such as alternative where you have to include everything in one sentence and have it be just the corresponding replacement in order for container so we've covered in both of their claims all the cliches and saying that pat i think the fishy ation doctrine also applies here i think we're talking about fundamental opposites i think that the you know to the asked to do with the hinge your honor i think it asked to do with whether or not the container which is the lower portion there's a lid that's that and the lids attached the container by hand we're talking about that container actually being one or think you would still infringe and when that makes sense the fact that you add an additional piece is not going to get you out of infringement that situation so i think the claim requires at least two features so another way to phrase that which in  container can never be the same as a one piece container in that situation if it is then the two piece container skull for that claim would have absolutely no meaning at all and i don't think that's that's appropriate now if it wasn't clear from the scope of the claim that it had to be two pieces then yeah i guess an argument could be made that you could make the pieces separate work or equivalent would be to make them together to limit that term of your given that it can be molded separately or can be molded to gether you're talking about one piece containers and two piece containers i just don't think that's a clear expression to to disavow or disclaim those  mccully also raise the term housing that has to be given meaning we agree with that it should be given its plain ordinary meaning and nothing about the term housing requires that it be separate so there's nothing about the meaning of that term housing that require the separate element and finally we talk a little bit about you know what kind of claim drafter done well acclaimed director could have written then that we want to peace container or we want to separate upper housing they didn't do that to the extent the prosecution history is relevant it shows that they amended the claims in the one three seven patent to remove other language to make it clear that it would cover one piece containers during prosecution the apple can't remove the language top container surface and  claim one that we're dealing with now and pointed to figure time which is a one piece container as support for that claim and during claim construction that was another issue that was before the court and clarion argued this top container surf makes it clear that these claims only cover two piece containers and the district court disagreed with that and said no they removed that language they pointed to a one piece container so i think to the extent the prosecution history is relevant it shows that the applicant intended to cover one piece