and particularly in terms of the central issue is that the district court neuron asli construed the term barrier to include continuous treatment on only one side of the building that would leave the other half of the building wholly unprotected from termite infestation this was not the ordinary and customary term the use and definition of the word barrier in one thousand nine hundred six it is undisputed in this case that the ordinary customary meaning of barrier in one thousand nine hundred six was a complete barrier around the whole sides that substantially block all potential areas of entrance with respect to that point of that there may be true treating the pesticide and very distinct areas as opposed to all around the house whether whether inside under routes of the yes your honor the district cour in or our opinion respectively that issue that you're focused on is exactly where the district court went awry because the district court said that the hope declaration which was submitted as part of the prosecution constituted a clear redefinition of the term barrier and really does find it too including the treatment only on one side of the built in of course the law on this is clear that such a redefinition has to be clear and it has to twelve that the court referred to in the specification nor the hope declaration provide a clear and unmistakable redefinition of barrier to mean one side or the other or both when you think their experts agree that deposition is people who perform this would put it around the outside and around the inside and the reason for that is pretty simple in the district court acknowledge it because a termite can enter from inside under the building through the dirt or from outside into the building it doesn't matter which way the termite gets in it still infest the building and still goes the damage and that's undisputed so no camera comes along and says for the first time i have a treatment that allows you not to have to cover every single spot and it's district court when he and then camorra says without barry that's the disclaimer without her we agree it's a disclaimer but the question is does it mean that he's disclaiming a treatment that is  sides which is what we contend or does it mean he's displaying a treatment that is even has a barrier only on one side and we see that makes no sense it makes no sense because when you think about where the judge ended up on a plane construction  and there's rain i am going to return to the specification and i haven't forgotten i will go back there one minute but let me just finish this thought the whole point of this invention was to protect the building from from termite damage the district court recognize that termites could enter from under or inside or outside the specification says loopholes in the treatment because it failed to get the district court construes the patent and the barrier disclaimer to say that one whole side of the building could be left unprotected either the inside or the outside in a in a situation where the whole point of the invention is to add a loophole it makes very little sense to say we're going to have one hole so high unprotected when everybody says it understands the termites can enter but i'm going to add a loophole on the other side it doesn't make sense in the context of the patent now with respect to the specifications your honor the judge refer to lines lines of ten through twelve of column one of the specifications let me just interrupt you  if that word has been read and then it would seem to me you have a pretty good argument but it doesn't read and slash or which suggests that barrier can be defined as to include only the one he's talking about two different events he's talking about the original construction of the barrier on both sides inside and outside and he's also then talking about the fact that sometimes you have a failure in the barrier and the barrier needs to be re generated and a person comes back and only applies some on one side or the other side to fix a regeneration where there's a hole so he is talking conjunctive lee about two different kinds of events the placing under a concrete slab and or around the house optimize the dose and that this method either either under the slab or and or around the house is and regenerating the barrier in the case of an it in case of something's disrupted in which case you would need to go to the whole barrier it only need to do a spot treatment so the question though i understand that it's him big deal  right well conventional termite control operators apply the chemical around or under the building right here on it it does but in that same sense it refers to conventional treatment and it's undisputed that conventional treatment referred to in that sentence was a full barrier treatment on poll sides of the building no support i know but it says the conventional treatment where they apply it or around in a door i understand or very important point i'm glad you raised we we suggest it means either or bolz and in the three m case this court which we cite this court found it to mean either or goals and then that case was cited with approval in a subsequent face that we cited free and my point is that this is an big uns but the standard is he's got to clearly redefine it and the reason it's ambig because sometimes you're talking about the original creation of the barrier sometimes as in mississippi chick you're talking also about regenerating a very where it is a repair now look to go to that language contrasts the conventional treatment with forming loopholes which was what which was what comrade was invented and respectfully your honor it makes no sense to talk about a home for example with a barrier around only the outside nothing at all on the inside and then from or is going to come along and invent the idea of adding a loophole on the outside of the entire insecticide is applied around or under a build now that suggestion that a barrier is an application of a continuous treatment around the building or under the building is in fact perfectly consistent with the prior art and extrinsic evidence it is true as mr gallo says that there are many teaching us that in order to protect a building from termite invasions you must create multiple vampires a barrier around and a barrier underneath but that does not affect the meaning of the term barrier if you look at their principal reference which is not only quoted with illustrated at page three of the blue brief you see a drawing that shows it's like like this a drawing which shows insecticides applied on the outside around which is called a vertical barrier and sector side applied approved reference manual the handbook of pest control which is also relied on says the same thing yes in order to fully protect the building from termites you have to create a vertical barrier which is a barrier around the perimeter and the use of the term barrier in the prior art in which the a s f results now what the patentee say is that mine it doesn't have any barriers and he had a good bit scouts it makes any sense from the point of view somebody seeking a patent it made perfect sense the inventor head good reasons to disclaim treatments that formed a barrier either around the building or under the building because that was the prior that was those treatments were disclosed started slows in the prior art that the examiner had confronted the applicant with take for example the cross tact that was  patent that on its face and as the examiner understood it involved drilling holes around a bit under it just around the building at this republic ations and squirting insecticide in soil and that was one of the pieces of prior art in which the examiner said all right well that's how that different from what your claim in the end what they said was that well the insecticide poured into the travels underneath the foundation and forms barrier under the building and there is no evidence whatever in the record that crosby involves creating a barrier under a building indeed the testimony that cites from their expert dr potter suggested that he wasn't even sure it would work at all but certainly what the patentee what the inventor faced as he was trying to building and so it was essential for the inventor to say well my my my invention is different my invention doesn't create a barrier at all it doesn't create it around the building a vertical barrier and it doesn't created under a building or horizontal very doesn't have a barrier at all and he needed to say there at least he perceived that he needed to say that to get the patent in the first place perimeter means only let's suppose the line just drawn for lack of a different point at the at the ground level around the four corners of the building and no more if that's the perimeter of the building in other settings it would be assumed to be then that would seem to exclude the second half of the barrier when we refer to perimeter but it perimeter includes also the area well i'm not sure that it matters your honor i'm not trying to fight to fight the question i think perimeter i think the judge correctly construed the term perimeter is having it's common sense meaning  add up the length of all the sides of the building and that's your perimeter that the argument that that be if that is making it so it will total perimeter needs twice that you have to count the outside and the inside added together so in a pen by fifty building your perimeters one hundred meters is not fifty meters i think that's counter intuitive and i find very little suggestion in the patent to support that reading but in a sense again it doesn't i  suggest it really doesn't matter that the chief really turns on what the meaning of the disclaimer is and the disclaimer was for paris and that both the extrinsic evidence in the intrinsic evidence in the pat prosecution history make it quite clear what a barrier is and it includes a continuous treatment around the building which the the authorities at the time called a vertical barrier and it included create a barrier in that sense there is funny and because there's no dispute unambiguous instructions to create what the authorities call a vertical barrier barrier around the bill that let me just call your attention to the passage area treatment techniques wherein a complete barriers formed around the perimeter of a structure to be protected now as perimeter in that setting means only the fifteen meters that you were referring to  t v i just see very little evidence of that but the nothing that nails the that question down well i think squares represents five meters per ten meters of perimeter i said and the black areas maybe cover half of the external perimeter but if the total perimeter includes the interior as well there's no way that that sentence makes any sense ok thank you and i mean i think if you accept and i think you should the notion that a examiner mind that it doesn't have any barriers of all the judge construe that as a disclaimer and therefore a limitation on the claim was no barrier the fact that the claim is a claim has uses the transition comprise and doesn't allow the patent t to avoid the need to have an element of the claim presents if you have if your plane is versus political barriers it talks about barriers so that it's not in the patents not in the specification it's not in the prosecution history number two i encourage or i respectfully request the court when you look at something like the hope declaration when we read it in its  in addition to using the word order which creates the ambiguity it also says if it's intended to quote ensure that the it is not possible to get to the termite to get to the building without crossing insecticide and it talks about the insecticide being unavoidable to the term on page eighty two that judge rosen you referred to in parentheses at the end of that sentence about the perimeter it uses the word there are no one treated location and respectful y as a matter of common sense and the context of this patent you cannot ensure that a term i doesn't get to a building you cannot make the insecticide unavoidable you cannot have no one treated location if you're leaving an entire half of the structure on with no insecticide particularly in light of the two undisputed facts that persons of ordinary skill in the art thought of a barrier as being on both sides their expert admitted that notwithstanding the argument you just heard for the first time about two different barriers that's not in the record that's surely oyur of their expert admitted at deposition that the barrier was that on both that in the at the time in one thousand nine hundred six a barrier meant a treatment and both sides commonly both the law firm that submitted the hope conventional treatment in one thousand ninety six which is undisputed to mean a complete barrier on both sides and read in context of like missile ship where there are occasions where you only treat one side to regenerate  and read it i'm sorry go ahead there was only a very next sentence contrasts it with a treatment with loopholes and you save yourself now does that mean that he's talking about having an entire half of the structure unprotected before the treatment goes on read together it creates enormous ambiguity the district court judge said in his mormon opinion it's sex need or the claim nor the specification make fully clear what barrier means he then goes on to find that it was clearly redefined so i know obviously he reaches a different conclusion but early in the opinion he s can a factual question and i have this very briefly to clarify just found this puzzling your building the building that you want to treat with a complete barrier right  let's assume it's slab construction right with concrete slab where do you put the under portion of the treatment this is from that is the the value of the so they would come in the air beijing and in drill holes every six inches to get it under the floor and that's what can work unless they put it in before they put the slept right of course art or if it pre construction you put it in and then you put the slab on top it but that was the invention that can work came up with was saying you don't have to go in drill holes in the basement where you can put it around the outside and you can pick a couple of spots on the inside and have loopholes that the value that