morning my name is adam acknowledged represent my card system practice to be like our product is partially met so both products are partially embedded in that so the first reason we did not explain was if you look at the first application of the p we indicating claim one that the environment in claim one covers surface mounted and partially in bed at all the same time so surface mounted is not mutually exclusive to partially i think that claim is limited to partially embedded i would agree that that would be the case in that instance yes i will claim one so original application so next you go to win the second because it's very i know you did and it is and you're one hundred percent right but we struck the word partially embedded in and instead put melted on the surface of and then if you go through progressive really all the way through you get like our patent was partially invented and also immediately after we made that amendment we took our swing by the language out of the claim the examiner in the very media rejection after the amendment said the  signal heads have mounted in the roadway it's a relative signal had members mounted on the roadway well even the roadway certainly would encompass partially embedded but on roadway rule that doesn't sound partially embedded anymore tell if you're on something if i say you're sitting on the chair you're not inside the chair you're on top of the chair and then as you keep moving from there to the next one you actually take all out look at the certain amendment on j thirteen fifty seven in there we say that we are above pavement surface mounted and partially invented all the things so which patent and indicated that our patent still included the partially embedded embodiment and so you know the third amendment starts with disease summary of the invention say about it but the whole point is you look at the summary of the invention on the third application then you look at point one on the third application claim one in the third application says a plurality of signal has managed above the surface that is in line with what we say in the summary of the invention from that point on where we say we're above pavement surface mounted and partially and that it and again in a reexamination examiner look at our pan last paragraph on that page where begins for example the next sentence after that refusing to the third sentence in that paragraph takahashi also teaches that the radiation surface of the luminous block signal had members may be projected from the surface thereby suggesting that this luminous surface is not flush with the surface so while we disagree with the p t o regarding the characterization of takahashi being able to be partially embedded in the roadway this doesn't the case that the examiner looked at like our accept the patent for read c m which of the multitude of claims that i have in front of me from your various applications and or which which one where they look into which version which version of cla asking us to make make a claim contract talk to hachi we look at what the district court can right through and they took the amendment which i think was your last amendment this is what you're it continues on the box well there's no doubt that from the beginning the novelty is that it has to be some distance above the surface in order to erect a beam of light towards on coming traffic council plane says extending at least some distance application immediately before the resulting claim in that fourth application we distinguished ourselves from oval and that was why we added that additional across language in front of extending at least some distance above extending at least some distance across that roadway surface and above that i don't think that you can read the prosecution history to come to that conclusion because what happened is we said extending at least some distance above the examiner rejected that language and said well we still have oval ogle is an invention where the light emitters are on poles that are twelve to eighteen inches high on the side of the road basically on the sidewalk and what we were saying is we're in the road we're not on the side of the road we can't place the emitters of oval in the road because they would block traffic because they're twelve to eighteen inches high and the examiner rejected our claim still so what we said is ok we extended leave some distance above but we also extend at least some distance across you're saying that some distance modifies both above and across correct especially when you read the fourth application which specifically pattern covers an entirely on and above but the preferred embodiment is partially that so the parson better than bottom line is at least some distance above the surface of the roadway so they can direct that beam of light towards on coming traffic that's the novelty is that it's directing the beam of light your way and you're about time the men have to stop you but i want to know more question before you get down which is one accusation i don't want to get into the substance of it but i want to ask you if i w you were correct in your appeal the district court has activation means wrongly construed does that warrant a reversal here and i guess the reason i ask is all of their products are partially in that it and if we don't agree with  disclaimer we do have to take into account what happened during the prosecution and in fact i think we do need to take into account what the examiner said about the claims at issue here and if there's an inconsistency between the  written amendment versus statements by the examiner well i i guess i don't know how to answer that because that is not the case of any part of this i'll review it and he did know that pack a ha she has the flush and the partially embedded i think what is particularly instructed is the examiners language for allowing the claims to stand and that's  mounted on the roadway surface and above the roadway surface and the the emphasis is the examiners examiner clearly understood that this book is mounted on the surface of the they say the claim should extend to partially invented yet when you look at their claim constructions they don't use the term partially embed it at all on the planes in their claim construction all they say is well i think it should be extended get least some distance above they then want to say that means it expend some distance below but they didn't they gave that up when they put those words in the claim it was rejected and quite frankly it does that but even if the examiner when he went back to and read it and thought that his conclusion at the end that the claim was listened to monitor on the roadway surface and above the roadway surface that precludes that communique case that yet has to be clear and unequivocal and they cite a whole host of cases all of those dealt with the arc of the prosecution history of stop or that the patent examiner does not believe the original claim to be and that while the patentee has a right to appeal which they didn't do here and they never once again injected partially embedded into the claims the patent these decision like darts decision to forego on appeal and submit an amended claim is taken as a concession that the invention as patent it does not reach as far as the original claim so what we have here is a situation where they're asking for construction of a construction that if it were allowed what cover the partially invented which they gave up the other arguments that they made for example the want to hearing and their reply which was made here in an effort to say that there is extrinsic evidence supporting the reading of the claim to mean partially in the lighting system protrudes above the surface a sufficient distance to provide visible light nowhere does it say partially embedded and i wrote that and i know it doesn't mean the other covered is not the end all and be all in fact as long as the claim covers one of many embodiments were fine and that's the basis twelve eighty five twelve eighty six of the august technology case there are instances where a claim should not be construed to exclude the preferred embodiment but that's one that's the old the only embodiment and again judge more apologize in that case it dealt with whether the f d a the limitation of the prosecution history should also cover what was excluded here and there was an expert report and the court decided that the claim construction offered by the infringer was wrong because of excluded all of the embodiments because the drug was only absorbed of the intestine but that is not the case here and in fact in the patent the term partially embedded only appears says me twice in the abstract and in that one paragraph that was referred to and that language in the one paragraph in the summary was in the original claim which was rejected over takahashi the the other limitation that i'd like to talk about is the limitation of the light source adapted to direct a beam of light the the limitation here is about the li source being adapted to direct a beam of light from said roadway surface the argument posed by like dark is the argument dealing with the light beam while the light beam could be adapted perhaps a tenth of the claim says the light source is adapted to do two things directed to the vehicle traffic and to have it spit jason two in generally parallel to the court took the of places in the specification where the rules of the structure described for activation meetings and it went through and pointed out every place and everywhere  and we'll know if the proximity could be mounted on a pole as well and so the the the issue of it being mounted on the pole what section one twelve covers i don't believe about column two line three lights are activated by the pedestrian either by manual switch or by sensor before he or she enters across law doesn't say anything about having to be mounted on a to switch the manual switch or sensor either one of those two things or the activation means they you can just those two are and then you look at how you accomplish that that is accomplished by mounting them on poles the nineteen the switches ten the mechanics and pomales design or proximity activated switches infrared sensors or any other type of activation device telling the world is it proper to limit this to only the mounted on a proper to limit him to only one well quite frankly i think if you look at the the argument the only argument that has been presented by lifeguards is that we just need a switch they did not cover the aspect of at on both sides of the roadway and it was on that basis that the judge rejected their argument because i understood them to argue at all times to the activation means as the patent is a switch not if you look at their claim construction no they say a switch right you have to have it on both sides so your honor you cannot have it on a single on either side in this issue was accorded said mounted on hot air balloons on either side of the road i mean when that the incorporating structure that's well beyond that necessary perform the function got this the sensor down at floor level that says it's from something walk past it or you know my football activated that doesn't have to be mounted on a pole that doesn't have to be mounted on the roof or that the ceiling of so when the a in the first amendment we said please camp acclaims one through seven and so claim one became claim eight and in the third rejection the examiner said claimed eight ten eleven and fourteen  indication by the examiner that even though we took out partially embedded from the canal amosun obviousness rejection which was which the first three two rejections were also obvious describing talking hifi right right and that's what it did in the first two i mean this this rejection is the exact same rejection that happened in the first two rejections after the second rejection we amended the claimant's of partially embedded out even after we took out that language claim and that claim it only said surface mounted there was no other defining language so even though we took out carson invented we still said we're surface mounted the specifications still have the preferred embodiment that was partially embedded in the examiner in the third rejection on j f thirteen thirty said you're still partially embedded so we reject you over talk often and then we have the you know  remaining ongoing negotiation with the panel and as i've explained before ot our competitor says that the lighting system protrudes above the surface that indicates that it's coming from at least