senior police court if the total process were a competitor's process instead of in the prior art roman hospital probably accuse it of infringement and would almost certainly win because the total process hydroxide is capable of doing those things it doesn't neither nor to does says it's doing those things it doesn't necessarily and you did not do any experiments to show that it's capable of doing so you simply criticize their experiments assuming that they said the last thing they did not depend on inerrancy well your honor i respectfully that is some kind of an admission and the question is what comes what does it is it it seems to me could have either of two scopes one is for every one of the hundreds of thousands of permutations of or it might mean depending on which one you use it's a swelling aged and in the absence of a finding or evidence i don't know how to interpret the scope of that admission you're on the claims only require adding in a greedy and that is capable of causing swelling so just like the example of the analogy we gave of a process for making bread or you have to add adam leavening agent when you go to the grocery store and you buy the yeast it's a leavening agent that you don't know whether it's actually going to leaven yet or not because you may use it in a way that doesn't work or if i hand you a screwdriver it's a screwdriver even if you can't happen to get a particular screw driven then it's still a screwdriver because it recognize it having that function the and in other words totally let me see if i can just maybe you didn't understand or i didn't sharply identify what my puzzlement you said it reasonably enough that the need to figure that out it's how it's an admission that it's capable of doing it how do we know that it's that the words do not tell us which of those two things those two meanings it is when you say suitable point that the language does not make that clear it's a perfectly permissible use of the english language to say this is suitable in in the processes we've just described to be either in every single one of them or in some of them depending on which ones we pick your honor i think it's capable of being of causing swelling it may depend on process conditions that put the claims don't require any particular process s this technology that it makes perfect sense to say these bases would always be capable of hitting the core and swelling or permeating the shell and swelling of the core in every one of the million possible individual combinations that the patent has just described our expert looked at the process that was in the prior art and said in that process the bases that are being used are being used as well and that's also  the core their evidence and when they put on first of all it's shifted a bit what they put on was evidence that it doesn't work at all they called into question the quote authenticity of the patterns of the prior art itself in other words calling into question whether the evidence that was submitted to the patent office is that you use an agent that is capable of swelling and the pack both blankenship patents at issue here and the total patents both say that these bases are capable of penetrating the fore and swelling their quibble is eighty degrees with a five degree difference is the same basic shell polymer and so there may be a quibble about whether they should have gotten that temperature up a few degrees more but there's no quibble over there shouldn't be any quibble that these bases are capable of penetrating that shell and swallowing the core just like as i say if you go to the grocery store and you get v c it is capable of leavening bread regardless of whether it ever actually does it screw drivers legal a driving screw needs and differen box between the ingredients that and the last step of reducing the monomer we don't even need to know what's inside that black box all we need to know is that they added a swelling agent that is capable of swelling and blankenship and to say that sodium hydroxide and potassium hydroxide are capable of doing that now it just so happens that in total it's pretty clear that actually works because they've got photographs of swollen particles so it's all particles but that's beside the point we don't even need to show that because the claims don't require swelling they don't require the formation of small particles they only recite three ingredients being put together one of which is a swelling agent and then under certain condition and then reducing the monitor level by fifty percent nothing in th set up this process it explains over and over make sure you keep the quantity of her box a little containing monomer between twenty and sixty percent because below that the base won't permeate into the polymer particles and then it gives specific ranges for the weight ratio of the  polymer and weight ratios to the center layer to the intermediate layer all of which are geared towards making sure the base which is either potatoes potassium hydroxide or sodium hydroxide can penetrate through the layer and neutralize the core tota is laying out the exact ship is explaining and so that's additional if you want to on state evidence as to how and why these bases these fixed bases not only that but if you look at all of the examples in the blankenship patent they've i don't recall if they all use potassium  thing that everybody agrees essential is capable of doing it actually did it's like if they claim inquired providing a screwdriver if i give you a screwdriver to drive you shouldn't have to prove that it's capable of driving every screw every time in every condition   they're the only thing that would be left with that would be their contingent claim construct their contingent claim amendments if you disagree with how the board did its analysis for instance whether it's inherently analysis correct that it might claim destruction that we disagree with so if the if the court changes a claim construction i don't think they have of course i would like to address the last point about whether what would happen if there was a free man which of course we don't believe would be appropriate here but there are many issues that would remain for example we put in evidence that there was no substantial plummer's a evidence that they were not and we put in reproductions showing that he tried to replicate that process and did not get first of all you didn't get any basis into the shelved that's a separate issue but overall that the processes were not a needle so the initial fact left as adopted was one that says that they construe to an agent as expressing the structural element and functional terms cable will permit in the shell and so on in the core in the presence of the multi stage polymer and minor under conditions of the specific process for which the agent is to be used that was part of the construction it was also there is evidence on the plane in ordinary meaning which is where you start with claim destruction even under b r i can let me let me try to focus on ok if this question is clear in my mind it has to do that what the spec to say in the suitable agents could include these bases but to be a swelling agent consistent with minority meaning in the process in which you're using it which is what the board got to think i think we're talking at cross purposes i'm sorry i am as a given for now that you're correct that to be a swelling agent this thing has to permeate the shell and swell a core and i'm also holding as correct the rest of the claimed construction in the process are there millions of different process conditions right so what you have to do is look to see under the conditions or using it which is what the board is getting at is it capable of penetrating shots going with or and it's a simple test to our experts in fact if you look at the your honor the total patent of column seven is a twenty seven that an a six three three total actually did a test to see when the hollows started to form and it states here that they did alectryon and it showed that the palmer particles start off far hollows this is the bottom account seven top are made during the acid treatment so it's a simple it's this is really an issue of scientific science you're going to direct your attention to come on because it says during the latter stages the plumber zation as our expert showed in toto there's glimmers ation going on so the plane would be met if you said this is admission here somehow controls well then there's no anticipation here at all because it showed you have paid twenty one of the great they don't mind that baloney there that's all stuff they had in reply brief and the reason is because unlike their interpretation as council their own experts said that when i read total i don't know there's any swelling of  taken as to what in your mind if any he's the difference between saying it's capable of doing that and it does what you wanted to capable of doing that means that support construed in the process that is being used is called fix the process being capable of doing this that doesn't mean it's doing it it means maybe if i do some other things on top of the specified conditions it will do it but capable is broader and people actually occurs and i'm trying to understand what only what it's capable of doing it in the specific process where it's being used and instance little back and forth we've been having about the meaning of capable is that something that they had made an issue of know that their position was that tried to i think you put your finger on the last series of questions you asked what they're trying to do is read out the word capable and they're trying to make this claim into a claim that actually requires a swelling step that's not even the board's construction the board construction merely said that you have to add a swelling agent that is capable of swelling and we disagree with the board's additional requirement that it has to actually penetrate the shelf and swell the core but let's accept that the purposes of argument that the board's construction is correct being capable of doing something is not the same thing as doing it if i hand you a screwdriver it is capable of driving a screw but maybe when you try to do it because it screws rusty it won't work but it's still a screwdriver this term is very much like the term in greenburg that it's hot mechanism which this court capable again we see the evidence and the cases you're asking about the cadence case that we said was discussed in our briefs as well as the procter and gamble case which granted was a district court case but they got that claim construction exactly right it was a  the argument that was being made was that a jelling agent isn't a jelling agent until it gels and the processes that were at issue there didn't actually get to the joint stage even though the thing that was added actually wasn't yelling agent and the court correctly constat in that case they jelling agent is a jelling agent even if it doesn't gel in a particular circumstance here the claimed it is you don't require a swelling step they don't require any particular temperatures they don't require any particular anything they require the addition of a agent yeah well it's been construed to mean capable it's and i don't think there's any argument that it does have a functional element to it just in the time trying to understand what you're saying this is sponsored well what i'm saying for the first of all  they argue that we are trying to get around this we're capable we acknowledge that it's a functional term it has to be capable of swelling what we're saying is that it doesn't have to be capable of swelling in the specific prior art process that has been used and it just has to be