anna please the court this case is about a process for making a dried fruit product that has a flavor different from its natural flavor and the way that that's done in the context of the eight six one patent the amazing raisins pattern at issue lawsuit is by starting with the fruit that has had a sufficient portion of its natural moisture removed such that there is room to insert the infusion syrup containing a new clay bringing a gent and the joint and creating for example a strawberry flavored razan or an orange flavored cranberry now oceans phrase accuse process does exactly the same thing it starts with a cranberry that has had removed in fact almost all of the natural moisture of the cranberry has percent but i think there's other things in the specification that also reveal that what's necessary for this invention to work is not that the food have some specific absolute monster content but that sufficient natural moisture from the fruit be removed but there is room for it to and the first part of the construction says that dried fruit is fruit from which natural moisture has been removed and that's correct we can agree with that in fact that's the definition that supported by the intrinsic an extra in the evidence in the record including go to the trouble to see in the detailed description of the invention the very first paragraph i'm going to read it outloud any dried fruit which contains between about ten percent to eighteen percent more easter may be fruit means didn't do that here except this is as close as it comes as this one sentence so what why is it that we have to jump to a million hoops trying to read your mind and read them on the in the art which the meaning of dried fruit in the context of this invention is known to those of skill in the art and was known even though to those of us who are not skilled in the art of food science we may say oh what what does dried fruit mean we're not really sure and that means that the judge but  that's not who the pattern is speaking to in construing a patent claim we're not asking whether it is understandable to a judge or to a lawyer asking whether it's understandable to one of ordinary skill in the art and what the understanding of those skill in the art is about the meaning of the quite well the one and the the natural moisture of the fruit and it contains the natural it contains eighty seven ninety percent of its natural moisture and it started out with eighty seven to ninety percent natural moisture then it would not work in the context of this invention but we have to look at that first i'd like to point out the district court relied on a dictionary that definition at the time of issuing its claim construction that construed the term dry as an adjective applied to food and that dictionary definition said that dry right as an adjective applied to food means preserved by removing natural waster everyone of skill in the art understands that natural moisture is what you're talking about when you're talking about removed when you're talking about drying of fruit in fact ocean sprays mr mantis there dri be nineteen twenty twenty one all the way up to some higher number that we don't know so i don't understand why it would have been him eighteen percent was a bird specific range was called a help if that sentence is now schooled to be disregarded here i would suggest that th sentence is additional to the sentence that precedes it which includes fruits that contain much higher than ten to eighteen percent moisture and all of the evidence of the record despite what any of us may think or anyone who's not skilled in the art may think all of the evidence in the record is that people of skill in the art understood what dried fruit means and that they understood that it had absolutely nothing to do with the arbitrary moister range of ten to eighteen percent which would really limit the scope of this invention to store bought raisins off the shelf and this invention clearly applies to much more than that so whatever the disagreement there the district court's construction disregarded the statements by oceans brave right through specialist mr mantei as it disregarded its own dictionary definition that said preserved by removing natural again natural is in that definition waster that's not something that amazing raisins just came up with out of the blue that's something that has been discussed by mr mantei it's in the dictionary definitions of dried in the context of an adjective talking about food products so in any event mr mantis oceans praised developer to choose process agreed at his deposition that the de characterize fruit pieces of ocean space process are the dried fruit in that process now regardless of how we view the little infringement issue in the in this case the record evidence shows that the ocean spray process infringes under the doctrine of equivalence there is specific evidence in the record that each of these claim limitations at issue is present either literally or by its equivalent and with respect to this point i mean dressing the drive through  imitation specifically mr mantis and his deposition explained that the character ice cream very pieces in oceans phrase process perform the same function in the same way to achieve the same result as the clean in the patent and specifically the function of the dried fruit and the de characterize fruit in ocean springs process is to act as a carrier for the infusion syrup and the signal it and the dried fruit disclosed in the patent does that that you characterize fruit in ocean's place process according to mr mantis who developed the process does that now it does that by having had a portion of the natural moisture removed to leave room to add the essential into the new flavor now that's what happens in can add that natural moisture removed the fruit still intact and then reengineer re characterize it with this new flavoring syrup and the food went well that's exactly what the disclosure of our patent is and the result of course in both instances is a flavor dried fruit product that ha flavor different from the natural flavor of the dried fruit so the evidence in the record is that ocean sprays process does the same function in the same way to achieve the same result as clean one of the  wet and in the context of fruit in the context of this invention which is the context that has to be applied in considering the doctrine of equivalence the distinction is not between what fruit and dry food it's between fresh fruit and dr the only arguments that amazing raisins ever made during during prosecution were to distinguish the fresh and frozen fruit never to distinguish the let fruit now an example is if you took a box of raisins and you dumped it in a cup of water would they be wet yes are they still dried fruit yes and if you take you now pull and a fresh apple and you wash it under the sink and you pull it out is it wet yes is it fresh yes wet fruit does not describe any class or category of fruit it just describes a state of whether it's in water has water it you know attached to it or cleaning to it and so the difference here between the classes of fruit is between fresh fruit of frozen fruit having the natural moisture content and the dried fruit that does not are in the record showing that it performs the same function in the same way to achieve the same result and under this court's precedent that creates a fact issue sufficient to give the mandate for at least a determination of infringement under that act and a quick one and i see that good morning may please the court my name is jeffrey snell i represent the appellee ocean spray cranberries and the issues before the court on appeal are actually very simple the district court was easily able to determine not infringement on summary judgment on an undisputed   liquid is still within the category of drive through people who are not saying that none of the moisture in the removed number drive has to have a meaning in and on its own it means that a substantial amount of the water is removed the dish accordant in before they claim construction we came up with a formulation based on what specifically stated in the specification about how low that much of it needs to be they said the twelfth eight percent that makes sense that provides the guidance of what it means to be a dried fruit and that is a food to which the the the claims process is applied all right that isn't what you are telling us you are saying it can be completely we to the to the fruit pieces so that the concept of dried fruit cannot apply to you not treating a dried fruit in the in the oceans very process in the office for a process fruit has what percent most juices and the and the sugar there's a soluble solids so the moisture level the amount of water and that being the same because it's it's just as wet when it started but you've taken out the juice in the sugars and replace them the same as your hands are not wet you say i think the direct answer would be helpful juices are bad but they have they are moisture they have a water content and the juices that they contain the water in the flavors lives to claim limitation that is being contested and i think you said that that dried fruit is approximately ninety percent moisture right that's it's the same level as it is as naturally occurring it's not the same water molecules that were in that in the fruit to begin with the water was what replaces the juices however it is one of the material of the dried fruit which is and before anything has been replaced that starting material you said is ninety percent and that is natural moisture ninety percent isn't actually much the level that is not the water that that that the percentage of moisture in that product the testimony on the record is that it's a ninety percent watched a lot of blue started ninety percent you remove the juices and you're left with ninety percent yes it starts up with a different kind of moisture it's the juices and the soluble sugars which are washed out and replaced with just plain water in the is the foot pieces are moved up slowly uphill and as they are water is pushed down on up and as the waters push down it it is pulling that the juice in the sugars out and that what's pulled out is in a place by the water that's that that is  concentration of juices is much higher and in the cranberry at the beginning an extraction process compared to the water so that so because of the acid differences and the other difference and concentration than that in the juice and  over the cranberries the natural juices are gradually removed so that that percentage goes down but that the water that replaces it does it so moving through that process in the shack to set that's right there is always a very high when i was thinking you were qualifying the question i asked you if there was any point as you move the cranberries through the process flavors been removed at that point leaving a cranberry hole that has nothing more than a slight acid bite and it is that those fruit pieces that are then put into the infuser which is the next what is the moisture content of the the whole at the time that it that it finishes the extractor is the same as it when it went in which is that ninety percent of because the juices have been replaced with with  of the process up until the point where the infusion syrup is put into the into the fruit and was there wasn't one question and maybe in your answer at the end i understand my question right at the end of the know i think that the issue or the source of the confusion here is that ocean spray has come up with a process for drying it's cranberry pieces that uses water and then to confuse the issue they talk about wet not being dry and i think if we keep our our focus in the proper context which is  extractor so imagine to have a cranberry with all of the natural juices removed and it's been replaced by water what happens if you tip it upside down exactly what happened as the evidence in this case shows when ocean spray is in play him michael scott took a scoop of the characterized cranberries coming out of the counter current extractor which is where the juices are replaced by water he shook it and tried to get up as much of the water on the outside as he could and he put it in a bag and he tried to vacuum seal it and he couldn't because so much water kept coming out of those to characterize cranberries but the back room sealer wouldn't work and mr snow in answering judgments questions continually refers to coming out of the counter current extractor because that's where ocean spray has to put the focus in order to keep that ninety percent number the same the evidence is evidence shows i think a reasonable inference that the moisture content has declined by at least some significant amount and as your honor said when it comes out of the cone or current infuser the oyster content it's much less than ninety percent it's between forty six and sixty percent and is not any more moisture content so i think it's a cup full of water is wet but if you tip it over the water leaves and the cup is now dry and there are many ways of drying fruit you can do it with wind you can do it with heat you can do it with sun you added well after the labor has been removed the natural flow has been removed so you say no substantial remove means mask and doesn't mean remove well that was a honor but the summary judgment has to be reversed here on that basis even without that construction because the facts are no matter what is said here today the facts in the record are from mr mantei is that the cranberries going into this applied the exact same as it will in the same period of time the same amount and afterward it no longer tastes like a cranberry and we are at the summary judgment stage here which is i think important to remember and the inference to be drawn from the fact that the flavors there is to join is added and the flavor no longer there i think the reasonable inference that comes from those facts is that the essential it removes the flavor notion space argument is that they intend for the a settlement to add flavor not to remove it but their intent is of course cranberries which i would call it dried fruit have a cranberry taste there's no question the usage one is added and there's no question that after that it no longer tastes like a cranberry and i think the question you're raising about whether it's because of the flavoring server because th a great one for the jury but it's not appropriate in summary judgment where there are two reasonable inferences to be drawn and the evidence is that the flavors they're the assiduous added the flavor is gone there's no evidence and a deuced bios an ocean spray other than it