in which the district court found that the elastic pivot which is recited in claimed twenty of the one for a patent was not adequately described in the parent application now to begin with what's important is that there was no separate martin hearing in this case but then th elastic and the fact that the fulcrum exhibit can't sleep or bending was not precisely described with those words in the earlier parent application so is it your view that the continuation in  application that ultimately actually expressed lee described an elastic joint and in the word of last a joint of course didn't exist in the original application that that the c h p application actually feature could have been part of a continuation application yes why did you add all that new written description and all those new figures they were added to what the fact that inherent properties of what was disclosed in the earlier application catalysts kind of sarah so what's important here and what i want to emphasize is what was actually what they should find was missing not the hinged not the fulcrum rather what was missing was the fact that the hinge was not elastic and the folk rim did not exhibit no one would really think after reading it about cantilevered bending it was still somehow necessarily an inherent part of the disclosure and so therefore it's fair to say the inventor in the pattern as being flexible would not have cantilever bending but even so we want to underscore that the idea of cantilever bending is an inherent property of the structure that was actually disclosed why doesn't the claim just say elastic aside those inherent properties that are not required to be expressed expressly spelled out you want to move to another patch or almost to the clean construction issue on the six were open so as you recall this issue dealt with whether or not the portions and i'll just be honest a vision game to my mind as to what this claim was calling for and then once i understood what the theory of infringement was my mind got scrambled because now the vertical portions are actually not on either side of the ring they claim bring we're stacking the vertical portions on top of each other on one side correct and so i thought i did not expect that and then when i go spec i don't see anything even remotely suggesting that well i think there is environments remotely suggest you know where then if i could figure fifty nine and i think it's important to also go back to what's the purpose figure fifty nine is located on page fifty two of our brief as well as a zero one two six and what's important to note about figure fifty nine is that the right side of that figure is much bigger than the left side and so to the extent that your mind went to this different column like teachers and can each of them you're saying there are two of them there and i can't see we're not do well if we're not necessarily saying there's two of them we are agreeing that one abiding and one could be on top and one could be on the bottom we're also suggesting that the pattern is not specific at least in th to specify exactly where they are in order for the construction of this claim to be justifiable so how would i know whether i'm looking at one or two or three i think that a fair reading is that those there's not more than three and  compressed it won't get smashed but if you don't you would agree that if if i imagine for myself that there are two vertical column like portions on the right hand side one of them is really skinny compared to the other one right that's why our position is that the skinny one doesn't necessarily have to be a column like that fortune and that does not necessarily lead to the conclusion that there's infinite column like the questions in that one claim i that's on page  position that's ok so then it would be the lower right hand vertical portion that is actually perhaps more than one common like stick vertical portion the court i think some of the issues that you get for your honors are struggling with the ones that we struggled with as well i just like to point out before i get into the merits that there can be some attacks on the process used by the district court here and the claim unless they can rely on this earlier application that richard into the six words here and the written description argument that they make focuses on elastic that we also have another argument that other claim elements and that claim are not a difference between elastic given of the and i enjoy it and if you look at the specification it describes them differently as well and they're trying to rely on this hinge joint seventy six and the earlier patent as it's written of a wide variety of materials that could be cardboard could be plastic could be an elastic sort of semi rigid material and then they extrapolate from that and they take on a burden of the doct pattern describes as a back cover portion and you'll notice in their briefing they always refer to her as infocom but it's never referred to as a fulcrum in the pattern itself and that so there's a structural difference between what's disclosed might be so so we have a disclosure that that cover could be cardboard could be plastic plastic is not necessarily elastic for instance i mean my pen is plastic it's very hard rigid no one would argue that that's a lastic it's not necessarily a lastic and cardboard for instance is not elastic and that's another material the back cover could be made out of so and if you look at the at the figure of twenty five and twenty five the it shows a ring explicitly shows no bending disclose and that's a case that we cited the district court level the district court relied on that now to try to pivot around that decision the the other side is trying to argue th the roughly vertical column like thick portions in the patent must be on opposing sides the they're arguing lexicography were disavowed and must be shown but what the district court properly did was to look at the claim and evaluate that claim construe in light of the intrinsic evidence and how and or a person of ordinary skill in the art would have construed the claim in light of specification if you look at for instance the claim itself and the claim function itself talks about column like that portions on the sides it talks about a boat like a proportion and an extendable lower portion it talks about specific function that the ring is compressed and when that happens the upper portion in the lower portion widen flatten outward and the columns don't want and so if you if you have that claim functionality the only way that claim functionality can work is if you have how the claimed function would work with the columns on the same side well but if you look at figures fifty nine and thirty nine ve why isn't column or columns on one side if you if you start with the assumption that two twenty is not a cult if you start with the assumption that two twenty is not a column that i i don't understand how there could be more than one column on the other side column on the right side right i mean that's what appears to be happening and figure fifteen fifteen i did and there appears to be compression in the lower and upper right in portions of the what's at two twenty even though it is clung is thick enough to constitute a cult right that's correct and i believe they admitted that in their reply but if you look on page twenty three of their reply brief they say i'm sorry not the reply brief in their opening brief the bottom of page twenty twenty three they say despite having only a small sliver of a portion actually column like on the left side that you're sitting on a fifty nine to be admitting that there is a column like that portion on the left side and on the right side and the other issue i want to do address is something that you touched on earlier earlier judge bryson and that is the sort of absurd result that would happen if you took their current construction and that is there would be no way to tell how many portions were entering where they are or where a portion might start or and would leave the the cla m invalid as indefinite and i would argue also an invalid for lack of any written description because there's no written description in the atten of how a claim was columns or how ring them sorry with policy both on the same side would work and then we have an alternative reason to affirm the district court's judgment as well we have the claim construction but even if you don't go with this one claim construction we have the argument that the the accused rings do not have any more than one vertical column like and no reasonable juror would find they that they would they point to in their brief an area above the stack closure an area below but if you look for instance claim or sorry figure fifty five of the of the patent it shows for example whenever there's a ring closing mechanism and every figure show that has a room closing mechanism shows that shows that i believe there is your honor upper right ring sixteen forty six has column like roughly vertical thick portions sixteen forty six p and sixteen forty six you there exist well calling and has like an opera portion sixteen forty a fifty six b as well the on the left hand side of the ring there is what is said to be a single column and there is shown to be a closure in the middle of that column but it's lack of evidence and that's what the district were around there was no testimony from a person of ordinary skill in the art that supports their their their arguments no testimony from an expert the only testimony they rely on is the testimony of actors thirty six witnesses and they've been lied to and point that testimony to fit into the function that they claim and they have a couple problems first they're talking about the wrong option they're talking about the there being a bigger column on one side and smaller column on the other side and the bigger column can absorb more of the compression force and the column on the smaller column on the other side that's just simply not in the claim with the claim says that you have reversible compressibility that relative to a moderate compressive force roughly exerted in the direction of the minor diameter again like i said before that's going to cause the top portion to and bottom portion to compress while the sides don't that's a proper function that's not the function they analyz vertical moderate to press of force so it's a different force and it's also a different action and it's a different force because the claimed force is a force on the ring not a force solely on the column so in their reply brief wouldn't cause any compression of the top and bottom portions of the right it's a different force and that's a different action and that is he's talking about shutting the ring not to press and the ring if you look at the at the it's not flexible mechanics that we can't leave the bending but what we have what's important about that figure is that the ring is only partially rotated in fact it's not nearly as rotated as a candy if you look at figure twenty three which is on the page before you see that the rin rotate much more all the way around and in fact in figure twenty five to go back all the papers still on the top none of the paper has been rotated around and so what's important to know about mr stover's argument is that simply because elements and more importantly he expressed the testified that when the ring is compressed that rate rigid portion of the and its ring the right side of the ring does not break or deflect in other words he testified that it does it does not resist permanent buckling under vertical pressure between reversible compressibility resisting permanent buckling and making sure that the ring snaps together properly that was error on page eight zero one five three of the appendix i counted fifty four lines fifty four to fifty six teaches a connection between what mr bruce some testified to namely making sure the ring and she snaps together properly and the fact that the ring a stiff enough to resist permanent buckling ok thank you