with us on the line on the public line is frank turner and camille mchale who are with chevron usa in houston the thieve that i'd like to present to the court this morning is this case presents a recurring problem of the board reaching a broadest construction that under cuozzo that is simply not reasonable in view of the common ordinary meaning of the term and the specification now superficially it may seem that what the board's done here saying that the dissolving st columns so that the gradually changing step must also be in the column that might make sense but that's not what the specification says the limitation is gradually and continuously changing the alkane mobile face solvent to the final mobile face solvent and where that occurs at the solvent in left at is undisputed the claim language is clear if the common ordinary meaning of gradually continuously changing to be incrementally reducing the  st while simultaneously incrementally increasing the nd over the same period of time without interruption that's how someone of ordinary skill with understand it and that is exactly how the specification describes it instead rest of it and latched on to only those twenty four dollars words and said oh no you've given it some unique lexicography granted that board's decision is inconsistent with the common ordinary meaning but there was no clear intent to redefine this term in that way that for three pages describes it very clearly as this incremental reduction and incremental increase containing going on simultaneously let's look at what isn't disputed  here there are a number of things the parties of actually agreed upon in the briefs so let's try to get that out of the way st off the client construction here appears to be the pasta spaza to the board thought so and the parties think so the canons of construction that apply are very and we have i think it seems to me that the key specification provisions here paragraphs thirty seven and paragraph thirty eight with respect to this  continuously changing but that that gradual and continue was change is attained or comes about as a result of gradually and continuously adding is that what you say yes your honor gradually continuously adding the and increasing amounts while you're reducing the amount of the st that you're adding and you have to do it continuously over a period of time that's what the specification describes the description of paragraph thirty eight that you pointed out and at paragraph identical in both it's the same incremental change the same incremental addition that's how the inventors describe this invention so so what is what is also agreed is that the specification provides ample additional description that both wyoming and the board ignored and what the board has done here is come up with the construction of gradually and continuously changing the l k mobile face off to a final mobile face solvent that would cover any type of change they say right in their opinion even a sudden abrupt immediate switch of one hundred percent of one solvent to one hundred percent of a different solvent would in the boards you be gradually continuously chang lobby and his testimony and although they say they didn't rely on it for a claim construction it's abundantly clear that they relied on it for the written description issues there really are five reasons why we say this is wrong number one the chevron inventors didn't provide a unique contrary definition of gradually basically the sentence they latch onto talks about incremental removal of the st solvent decline let me ask you this is slowly reducing the amount of the st solvent while you're at the same time increasing the amount of the nd solvent you're making this gradual continuous change present tense verb it didn't say effecting a change downstream in the column it says gradually setup you'd have vats of solvents with tubing coming out of it to a valve and then that would supply the column you'd also have an injection point in that tubing for the sample you're putting in and you run the s solvent through the tubing through the column inject the material some of it will precipitate out on the beads in the column and then you run another material solvent through it to try to resolve some of that that's what you're trying to do to measure your precipitating these asphalt teens and then read assaulting them with a series of stronger solvents that's just so i make sure i completely understand your paragraph a of the claim or limitation a that's what is described in you know i am a chemist there was much chemistry here it's trying to figure out what these unclear documents say and we next board made a judgment and why why shouldn't we rely on well your honor because st off this is an issue of de novo this is clean construction and it's reviewed innova by this court based on the intrinsic record and all the parties and the board agree that the intrinsic rafiq wreford is sufficient to that's what the rest of the two that's the four paragraphs explain what the board has latched on only that and gave it a meeting that interpreted it it's it self does incrementally modify only the removal or does incrementally in that sense also modify the edition and we think it modifies both because the next four paragraphs explain that in detail what the board did is adopted one of those two interpretations and a way that's inconsistent with the balance of this portion of the specification and say no no we're going to look at it downstream after all the mixing and all the turbulent mixing has occurred in the column where it's going to naturally get mixed up but what the specification tells you is you going to do this in a very deliberate fashion because you're trying to get a specific kind of profile out of it you don't want just random mixing in the column that doesn't you may not be hitting the sample that's precipitated with the right concentration what you're trying to do is do a very controlled mixing so that that precipitate is seeing a very specific mix of solvents over a period of time that's why couldn't you just show here again how do you how does the word in your view how does the word continuously play into the discussion we're having here well cliff places two ways one it has to be continuously changing what wyoming does isn't a continuous change it's a sudden stop so even if the board could behalf of v f w the university of wyoming research corporation we request that this court affirms that decision below i think this is an interesting case that i actually believe ought not be that difficult if a case where chevron set out and express definition in their specifications that it now doesn't like as judge murray pointed out this expressed definition is set out with the words shall be understood to mean very mandatory words and so the question becomes was the p t correct below in applying that explicit intrinsic definition doesn't do that because all of the solvent goes into more than one lump so to speak what's wrong with that there's there seemed to be a certain logic to what he says there well your honor i think it was as you pointed out in you questioning of mr coyne the definition of the term gradually explicitly states that it involves continuously adding the solvent to achieve a change the change is something that's that exists in the context of the claim element which is dissolved in the st amount and the nd amount of asphalt by gradually and continuously changing the solvents that change must of necessity occur where the asphalt will be dissolved as was questioned earlier the this is a situation where solvents are fed into a column the column has an essence beads inside of it that's called a stationary and hurt well let me ask you this mr sentance of the language the bottom of page  sixty three gradually in continuously added to the column and here gradually is being used in a different context before it was being used with respect to gradually adding no i would disagree or honor because i believe the explicit definition sets out and it only makes good logical sense because we're talking about dissolving the asshole teens that are in the column the in fact what defines whether there is a gradual change or not let me and i apologize for jumping in but i thought comes to mind and i don't want to lose it mr stan and so  a final mobiles that they solve in that setter do you think that the that the wyoming process can be said to continuously add when it puts it all in it was unquestionably i put it all in at once is not an accurate statement in fact what happens and there is a discussion throughout both the four hundred and twenty five dollars patent specification as well as the two priority cases that talk continuous flow systems yes it is continuously added there is a transition from the st solvent to a nd type of solvent but throughout the whole process it is a continuous flow process so yes there is continuously adding continuous adding is what causes the continuous flow so yes we have a continuous flow system because we are continuously adding solvent to the column and if that continuous addition that in fact as the definition requires causes the incremental removal of the st solvent from the well incremental was defined by the p tad in this instance as having some amount of change positive or negative i was in the peak of decision and that's not the focus of the appeal but in this instance the question becomes is there an incremental removal which is in that definition and indeed there is incremental removal as is shown both by the flu dynamics of the column and by the test result that explains what transpires inside the column just to confirm that i understand and so what the invention involves is a is where the gradual and continuous change of the solvent is necessary so that you can glean any information that shows that show that tells you what gradually and continuously changing the st solvent to the final solvent in fact what is involved what does it involve it involves dissolving a specific substance the asphalt teams which only exist inside the c the university of wyoming research corporation applied for a patent explaining exactly the situation of this continuous flow system flowing through the b and changing the solvent and indeed in twenty thousand and fifty four years before chevron even applied for their patent application we know that the seeds were causing that gradual change in the solvent even in the particular instance which is only one example that there was a step change from one solvent to another in fact we do know that for years before the even when there is a step change something that is unequivocally disclosed in the two thousand and five priority filing we know that even when there's that step change as the solvents come out of the column which is where the explicit definition requires the determination to be made the st solvent is incrementally removed so that there is a how did these references to five minutes to about one hundred and twenty minutes in any way give an answer to the to the question we're struggling with here well i i think perhaps be underlying that question is some sort of intuitive sense with respect to whether those time periods are slow enough or such the challenges there's no time period specified in the  gradual the gradual is something that just achieve the chief incremental removal so to answer your question judge shaw i believe that the time periods are not something that are necessary to understand whether there is gradual or not the gradual change is explicitly defined by chevron and we're simply tracking that definition because that's something that chevron said shall occur during the period up and it goes on to both the chevron process purportedly gradually putting material in and the different wyoming do and i would say do they try to these particular time periods certainly they could because there's no time period specified but more importantly as i would urge the court to consider that definition and the use of the word gradual is as the p t have acknowledged in their decision below the challenges there are no time periods for that so what is gradual and what is continuous there's no quantified threshold to apply to run that that's a bit of a challenge with the chevron definition but t question yes both processes meet those requirements and indeed while chevron wants to distance from their own definition they try to do it by using two examples both of which  knowledge that the change is in the column and they try to use those examples as situations where they can distance themselves from an explicit thing that san angelo is just flat wrong and i would direct you to page ten of the red brief and the experiments that they're relying on post hoc extrinsic experiments show a change over in the column of less than one minute that is outside the range that is disclosed in the specification of chevron's specification which is the smallest is five minutes and getting back to judge newman's question on is this unusual yes very highly and we do know that whatever it is that wyoming's doing does not satisfy the descriptions and page and paragraphs thirty eight dollars forty cents the only process for the gradual in continuously changing the chapter on gives because they don't do it that way they put  of evidence showing they do it in less than a minute and they don't do it with this process and stead what they do is a sudden immediate switch of one solving to the other and they've admitted that and they're read brief at page thirty six mr st angela says no they haven't admitted it they have what they rely on as try to backfill that with continuous or with mixtures but there's no mixture that shows anything like within thirty eight to forty and nothing that shows the kind of time frame that we're talking about in conclusion really there's a lot of red flags here about the board's construction and what wyoming is arguing there is no clear disclaimer disavow to support any argued lexicography sure what the board is inconsistent with the common ordinary meaning but that wasn't a definition we gave starting at thirty seven dollars and continuing down to forty one dollars that's description is entirely consistent they're taking one set of twenty four dollars words out of context and ignoring the balance of the spec they're ignoring the continuously changing that's a criteria in the claim itself it's a limitation it doesn't say downstream in the column it says continuously changing and where that change occurs is where you have to look at that