it's labeled on a cap it was not labeled on the cap a trial so that made all the sense that it was just into the cap i'm i honestly don't it is this the space in between there's a little ridge there if there's a c r there then that would be the general area where it is but you'll see there's an indentation on the cap going around the edges i think an issue of the district court below was whether or not that constituted a structure and the couldn't this tree or includes just a flat surface in the wall the district court couldn't properly conclude that because you had a person of ordinary skill in the are saying that it was well put in look at the get a look at the which is under what standard do we judge infringement is it from the perspective of someone of ordinary skill in the art how would they view this element on the product or is it an ordinary trier of fact and if you look at confronted that issue because you have a person of ordinary skill in the our who saying my review of this product knowing this industry and understanding how hydraulics works this is a wall and any other person of ordinary skill in the art would recognise us as a wall how his expert was struck and there is no evidence in the record from which the judge could reach that conclusion other then the judge's own review of the product this is exactly what happened in the center is did we have a preponderance of the ovens when we offer the testimony of a person of ordinary skill in the art who says it practices the element the judge doesn't students say in his decision i disagree with him what the judge says in his decision is we didn't have a preponderance of the other or by definition we met the basic threshold of the standard since no other evidence was admitted in the record if for example except for the capital except for the capital self but no one on a poly side said there was no one there there's just a complete absence of evidence so what you have is a judge disagreeing with a person of ordinary skill in the art and i would agree with your honor that if we were going to judge infringement by how the trier of fact looks at it that is fine we can have that standard and that standard should be clearly articulate which would be a different standard that exists in all other elements of patent law but when you have a person of ordinary skill in the art offering that testimony our expert dr johnson specifically explained how when why his decision making process came from he examined the caps in examined the cad drawings and from and understanding how these work he said that is going to perform the concert the function of a wall as the term was construed by the court a device an assist a structure of a structure that separates volumes now there's a whole variety of ways we could look at a wall you could look at this cap saying that's no wall i've ever heard of before but based on this ports construction it is absolutely clear that by reducing that space in that area which own expert our own own chief technology expert the chief technology officer admitted he did it cause that pressure to separate the volumes to allow it to work the ship yes you  looking at the bottom of the pentagon's ten and this is the district court opinion paragraph sixteen page says what dr johnson actually have done to fight is the wall structure was simply the general surface of the cap itself i mean the inlet holes and outlet and then he continues with cords construction a wall requires a structure not simply a boundary to find the space you know he's here the he's applying the claim construct and he's he's the finder fact and while you would would disagree with that how is that finding clearly erroneous that finding focus is right on the structure which is what the fact finder has to do because what he's done is he's changed his claim construction he's now said that in order for there to be a wall there needs to be a structure over and above or on top of the cap and if you look at claimed twenty addresses that perfectly because claim twenty defines the wall as a wall being formed by the inner surface of the cap so it thinking that subsequent claws by the inner surface of the cap completely undercuts the court's conclusion there because he's adding an additional structure if the courts claim construction previously required such a structural limitation or an additional element other than a structure that separates volume you would be absolutely right but as your honor knows the court cannot change its construction after after evidence is closed in order to reach a finding and that effectively is what that rulings doing the under and if i understand you your say the only reason that you should win is that you are an expert is that this isn't the role and the district court had to accept that expert testimony despite his ability to look at the cat oh absolutely not your honor and that's what we're not saying simply having an expert allows you to win so for the example where the expert's opinion is not founded on any other type of evidence then then then the expert can be rejected but this is not the type of the case this is a case where there's a very that once the expert says i'm an expert and there's a wall here the district or can't say art can reject or ignore that evidence and what the standard for experts as i understand it is you can give the expert's opinion very very little weight but you can't simply that it has no evidentiary value where the evidence is founded upon opinion and to go back to your other point where the parties didn't just agree on a construction the judge had a construction  of a structure that separates volume and the judge's construction where he adds that element may be appropriate under claim for because if you look at how wall is defined in claim for or how wall uses on and you have want one that uses by and this when when you're reading that footnote your honor you're seeing that the judge is saying i'm not seeing a structure independent of the cap but  the limitation claim twenty specifically sands that the wall can be the cap and that's what happened here it was brought down in order to allow that pressure to exist two separate volumes the issue i think the court was having in the district court was having in his footnote is he was saying well there is no structure it's a fact like fact really just being caused by the pressure but that that cannot stand either because we know that the structure was removed the chief technology officer of law rocco removed that structure and i want to reserve the rest of my time for abo the court is observed the next eleven courts closings a law he looked at is a claim construction and he recognized that we've talked about this and it requires a structure that's more than the general cap in fact to use the phrase it has to be more than a boundary in the claim construction order and his finding his conclusions of law but what do we see from the expert he says i think there have to be walls in almost every pop there has to be some boundary through by which the water is directed and this is through all three guiding structures and then we asked are you aware this pat was issued on the basis of a particular well structure particular well structure he says i didn't understand that in this case we have the the happy circumstance that a very similar construction was provided  prior art and the inventor said oh no we have this little wallace little tab that comes down here it's an actual wall this other just prior art it just has a flat surface it's just a flat surface it's not at all  and he would say and he says well the area as a wall works well enough ignoring that now we asked him about this he didn't know what the rule recapture was which was attempted by the inventor later on to try to get back this idea that he could use an area as a wall it was disallowed it and then of course to the end dr johnson says i'm not familiar with the patent prosecution i'm not familiar with doctrine equivalence i'm not familiar with my gotta say that i think that this is correct i don't think at the infringement stage to make a determination about what the prosecution history is i mean if this were a jury trial  their property to put that in part of the court you have to deal with the plain construction you've got which no one challenged and to determine whether ready the ready district court committed clear error in finding literal literal infringement you have to show well you can't simply say right it's very moral making that determination and making that infringement interpolation ready prosecution is straight it at that point is not relevant that's not part of the infringement determination ready that's been playing construction and plan to restructure and it's not in front of us the plane construction was what it was neither party at this point disagrees but i certainly my point was that the court was following its claim construction and the expert was not the expert was saying the area can be a i am a wall if flat surface can be a wall and the in the works  separates avanti so what we have to have is do we have a structure that separates a volume and then in is in is infringement ruling said with ferd to the courts construction of wall requires a structure not simply a boundary defining a space then why is there not some kind of structure in this in this cap the way that i look at it as i've said five if i were to take a the only place in the entire record of the entire case where the word ridge shows as one time and claim construction order when when judge guilford is as remarking that he comes to this conclusion that he's going to use the nd definition of the wall that which was which we provide he declines to say that had to be upright in a way that we wanted it to be did say had to divide has to be a real division if he used the word ridge who used the word ridge one time in his claim construction but it's nowhere else in the record and where and what did he say about it in the claim construction he's already said he said that because i'm looking at the claim construction here is it eight hundred and sixty four who on this but it's nowhere it's nowhere and dr johnson never tries to make that argument that that's my real point is this this is not part of the record saying it's not part of the experts rightly so you cannot i he says yes so let me ask you one question that it gives it relates to your up to your process we'll obviously there's one of two possibilities ready here on the infringement issue we would affirm or we would disagree with district court and reverse correct correct ok now obviously if we were to reverse you would want us we would you want us to reach the inventor shipped across the aisle correct absolutely  on the other hand we affirm what is your position with respect to the inventor ship process you still pursue it would you still want us to it to rule on it what's your position we still want you to rule on it this is an act patent that's that's the basis of other patents there's a lot going on and so it's still an important issue johnson self to to show that that they had a misunderstanding of what the claims were supposed to be and how it supposed to be construed we also had dr lee that provide his personal involvement what you can do and of course this court has already said that that truck work can make its own judgment about who has credibility as i've already said you could it has to show the literal fire we have to figure out what's going on these are two people talking about the pump and everybody knows the pump works the only question is whether the interior surface of the cap by itself can be interpreted to be a wall in light of the claim construction at one point and we ask him so it could be flat he says yes the wall can be flat so we would say dr johnson's testimony is incompetent because you failed to testify the infringement was based on the words claim cross examination of this expert would demonstrate that the accused devices are not infringing under different and proper construction of the claims you could get does live does give lip service to the standard but their brief only argues failure to give their expert sufficient credibility is a clear air misstating reversal even those fraud courts are free to reject expert testimony and not require opposing counsel has made much of the something that people can go hook on but the fact is that we can make this change and it doesn't impact our operations at all and it was easy it certainly doesn't lead to fine of freshman but a finding that this was not a wall that had an i resents complex subject matter experts qualified when the accused infringer is negated infringement his own expert we're different from that in every way we didn't have an expert and they did but all they did to me this is kind like a an expert saying all of these things happened five years ago and he addresses it explains everything that happened five years ago but you just actual intentions of two years that expert didn't help you just provided a lot of testimony of evidence if the doctrine equivalence was available to you could just to prove its case maybe you'd have something maybe you would but since it doesn't have that available you can't say well it serves the function of and then i get there i'm cap their intent is irrelevant but what is relevant about that is that something was removed and that something is a structure so while we may look  structure on it though that the water could be divided and how do we know that was a structure it was removed and that's what our experts said there is a structure between these t and that's what makes it work do all of these types of pump need some time of some type of structure to separate volumes absolutely but the invention here is not simply the wall the invention here was being able to accomplish that functionality with fewer parts and the fewer parts here was to have the cap in and of itself how they structure that can perform that function and that is what dr johnson testified to he didn't just offer blanket testimony that i'm an expert in this this is that he showed it to the judge he provided demonstratives to the judge to show  he looked at the cab drawings and drew it out in our reply brief we show that structure so while it may not be a wall the way we would understand a wall it is clearly a wall as the parties agreed with the court's construction a dividing structure that separates volume there was a structure there that divided and the fact that my friend here talks about that that the defend the judge's ruling as not clear air with respect to for we're in for the wall has the additional limitation of being formed circumference or come from on the inner surface of the ca but with respect to claim twenty you have a clear error because there the wall includes the additional limitation of being formed by the cap so the cap in  itself has the structure wall and that is what we have here and that is what that limitation requires so if in twenty if the accused actually put an additional structure on their ca they wouldn't practice at element because the cap in and of itself is not doing it but here the cap in a unit of itself is is doing it and i was go back to my last basic point here is this is were we need some direction on how infringement is going to be judged because if it is to the standard of a person of of ordinary skill in the art which what dr johnson was his opinion is deserving of some weight and the judge here did not say that i believe it's something different he said we did not have a preponderance of the evidence we absolutely did because we had evidence and while there are instances where you can try or a facts can reject the religion of can limit the mony ability eight there was no credibility determination here and it's clear under i believe it's the  barricades you can't simply reject expert testimony and credibility grounds and that's not here so this would be a very unusual case to affirm a case where a judge simply disagrees with an expert and on his own evaluation of the evidence which was part of the center cut decision the judge on his own did this did not find any in the there was no independent witness who came up and testified i don't believe it's a wall there's no evidence in the record other than  just like is right he's free to look at it but his he free vent to reject the expert the argument here is the expert wasn't talking about the wall the expert absolutely was talking about the wall as construed by this