thank you judge prose your honour's may please the court the district judge in this case adopted a clean construction that excludes every embodiment disclose claims cover a different environment that's a red brief at page twenty six and it's also discussed in the rule twenty eight j letter to this court has made it clear that such constructions are rarely correct and that they must be supported by highly persuasive evidence there is no such evidence in this case and the red brief is silent on this issue there's no evidence here of dis ordinary meaning but instead of turning to the intrinsic evidence in accordance with this court's clear jurisprudence the district court looks soley to one diction the proximate end was the general area at the end of the container packer on the side opposite the transport container and that's completely consistent with a slightly different but more general formulat the side opposite the transport container so the transport containers figure of one element number eight the shipping container if you will and so the with respect to the transfer base which is a subject of much discussion in the briefs that that approximate and would be over if we look to the extreme right a just stick to the container to the proximate end of the container all right what how far does your definition and profit and extend along your i think there is it really hard to say it's anything less than half or to define it with more mathematical precision then the right side half of that contained attacker it's clearly told and that's evident in the decision of the district court where there's a discussion of the doctrine of equivalence and the court makes clear and i believe that this is at a  when doing the doctrine of equivalence analysis with this record certainly didn't wrestle with the issue of whether it's a region that is associated with the what's called the right side or the edge of the container back only that there was a point that was indicated by the by the use of the term proximate and and that that point that word was not used event that  the point of connection is offset from that extreme and by as much as ten percent so it's your position that even that language that the judge actually used in the construction could have been broader when he actually did evidence leads directly to a dictionary definition that is quite  how far down  and are not so much used in their absolute sense as they are in the road systems and a person of skill in the art reading that claim term in the context of this specification would conclude to reference to the proximate band of devices is the person skill seeking to build this invention or to understand its meets announce it advises that person in terms of the orientation of this very large mechanical and that the extension of the container packer into this large shipping container should be at the other end i agree that is that is less than completely precise but time and again this that there could be a reasonable interpretation at a minimum is that the proximate and is a region and it's a region associated with that far right extreme edge and that it would be appropriate to let the jury see the fifty percent or nothing your units were not on thirty five percent of it honestly i don't see how i could take any any position other than that because i don't think there's a mathematical definition of and here that's possible and figure for it this is an exploded view showing the a partially extended to sin and cylinder unit and element fifty eight points to the middle of that first telescoping cylinder so that when this when this push plate is pushed all the way forward we have multiple sections that telescope forward to push that blade towards the  edge and so in figure four we see fifty eight pointing to that very first telescoping section in figure five we should the blade is completely retracted this is a non absolute extreme edge it includes our definition would would be that it is a region that includes but is not limited to the extreme so i don't think that figures four and five are inconsistent and it seems that a person are still in the are seeing that the connection on the transfer face and figure one is offset by as much as ten percent from the very edge and that the hundred thirty nine percent are looting the interior of the floor and the law this exact issue judge moore was raised at the claim construction by the defendants my friend argued then that the still and with an opening required a structure we argued that no no structure is required for and the district court agreed with us and rejected that argument and concluded that no construction was necessary container packer then what would have big that would either have to be on the floor which is listed as an element or on the side or on the edge of the side walls on the far right side which is also an element and so i think the more natural reading the transfer base does not break and so we have to construe the term and consistently between the container packer and the transfer bits so the transfer base is like a table it just ends and then there are apparatus as many that are mounted upon such as that power subsystem that is flush with the edge before the tip of the connection to the container and so and here cannot be interpreted that as being any spenny structural element it's certainly not marked as such were discussed with a specification anywhere and if that is the the proximate and the district judge was right then clearly elements twenty eight and twenty six which are the connection between the proximate end of the transfer based in the claim he's in the claim language down and the container packer is obviously offset  a factor of what i estimate just looking at this drawing is ten percent and so that is why makes clear that the claim construction excludes the disclose care i'm hoping it won't be necessary of may please the court the district court used the definition of the word proximate end of the container packer and said it has its plain meaning right the your honor i think it's that we are talking about two different and in this case there is the claim term there's the proximate end of the container packer and yes there's a there's the the end of the transfer base and presumably they're being used they're both proximate ends that are being to stamp presumably the end would be defined same way well you know presumably they would be but what i will say about that is we have a lot of evidence about what the word and means regarding the container pack are in the specification and in the claim and much less about the proximate end of the transfer base so in the container packer for instance has as judge more a noted the container packer has approximate and it doesn't just have a distal end but the distal end itself has an opening which is given a separate number in the specification and those are separate from the side walls in the floor then we find out if you go down two more than the two sions we label that one in our brief the container pepper drive which is that hydraulic system we're talking about has to be connected to both the transfer base and the container packer that's already part of the plane then you come down five more limitations and now it says it doesn't just have to be connected to the container packer proximate and to the container packer and the transfer basis but this is where it has to be connected so before we ever got to the limitation that issue we already knew there had to be a connection between the hydraulics now and saying the connection where the connection has to be that the only purpose of saying proximate end because otherwise you don't have to say anything because it's already has to be connected the one other thing i will say about this is there's another claim term that was briefed which is that the packer blade which is the moving wall inside has to both end up being retracted to a point proximate to the container packs are proximate end and adjacent to the container packer approximate and so the claim actually comes at this location of the container packer proximate and from both sides it's at the hydraulics have to get attached to the end in one direction and that container that packer wall has to slide all the way back to the adjacent to the put to the to that proximate and in the other direction so in this case when you're looking at proximate end of the container pack or the claim itself this is very clearly using a specific location it is saying that it has to be otherwise adjacent to an undefined region would be a meaningless concept so it's your protection that different things i don't think it does but what i'm saying is that the is for as well there's no dispute in this case about the proximate and the transfer base being at issue here what we're talking about transferee the proximate end of the container back i believe it's used the same way in both ok what i will say with respect to the transfer base because they do point to the figure and when you look at the screen you look at the click the language in the specification the specification uses the word end back and front end approximate end to talk  about the hydraulics which is a basically a telescoping pole it talks about it with respect to the container packer but when you get to the part of the specification that talks about the transfer base and it actually talks about what the figure shows it does not say it's attached proximate and the transfer base what the figure with the text related to the figure shows in that it is a point forward from the transfer base and that is conferee line twenty two through thirty stated in the patent about how you use the hydraulics is to push through your rudely the entire container pattern and that is that count four lines twenty four through twenty seven it says the function of that about hydraulic is to push the entire container on purpose because that doesn't just push it push as part of the container packer and it pulls a third of the container packer and we believe that's a superior design that provides more stability the declarations both the declarations provided by the plaintiff did not disagree that there was that this didn't perform the function of just pushing that it did this hybrid function of pushing and pulling what they said was it doesn't matter it doesn't matter because we're going to identify the function as just moving the container packer back and forth and you can do that by patching at any point it doesn't matter where you attach a hydraulic as long as the box moves it's fine and as far as side the skies debility which your designer said was  improved we're not to dispute that but what we're going to say is there are side rails that hold it in place anyway so ultimately who cares if they're side to side stability and that is the substance of the expert declaration so i believe they mis identified the function the function that's in the is is a function of just pushing and then doing an entire extraction from the end and there and that is done by specifically at the location at the end that's not what they were talking about we provided evidence that there were differences actual differences in the physics of attaching to a point that was closer to the middle and rather than dispute that they said there are other reasons it doesn't matter the further thing is with all due respect and so i think i've responded to that but i think this nation point is an important one there was already a claim limitation which was one of the hours that said you have to attach that container pack or drive that hydraulics there's already a plane limitation that says they have to be attached and they have to move the container packer so that's done already when you get to our limitation it says it has to be at the end that's the only addition that's the language already there had to be a hydraulic attach to those two things and already moved it back and forth that functions a different part of the plane this part of the claim says it specifically has to be attached to the engines and that function is pushing the whole thing and pulling the whole thing and that's a different function than just moving it back and forth moving it back and forth away from well i mean possibly i you know i see it as a different function but even then even if you interpret it as clearly a different way we reach the same legal result and there's no really other way to do to talk about this really outside the two it doesn't say it just says it doesn't matter where you attach it it doesn't matter so what they're doing is they're literally taking a line through the language of it has to be attached to the end because they say to be attached the bottom to be attached decided to be doesn't hypothetical that's not a claim requirement and in fact we had argued including construction which is part of the record that we thought that the concept of the container packer guide was talking about side rails when the judge rejected that and said no you don't have to have c claim doesn't require that the other thing is i would you know there there are there are limits to this concept of doctrove equivalence and one of those limits when you're talking about and this is what the judge basically looked at was farce and stage the cases say when you have a location requirement you can just ignore that and say it's fine to just do this somewhere else and when we're talking about going fifteen feet down a forty foot box in attaching it to another point that's not a matter of degree that doesn't mean that's not within the general body of law doctrine of going to your wind or your claim construction argument you're assuming that fifteen forty boxes is as opposed so basically three things to say about that one is an interpretation of the word and consistent with what the district court did and consistent with if you're using proximate end of the transfer basis that if you i believe if look at the text that this is one case where doesn't talk about the time to the end and the only place it did the originally filed claims and so i thought it was a johnston johnston's duck johnson and johnson you know there are multiple embodiments and some claims can speak to some and some claim to speak other but if you wanted to talk interpretation of that word and that even though the text of the patent does not pose the end would be a what i would say about it is the power system subsystem twenty forms the back that forms the proximate and there's nothing there's nothing else there's same way to do to keep the same result in a way that actually analyze those issues or in a way that drew a line through plain language and vitiated built the locational aspect of this and so if they had said well given what actually happens is the put the push versus the pull constitutes you know essentially the same movement of matter and shears the mass to do it they did something else especially one thing but what they said is as long as you're moving the box it doesn't matter where you attach it and so the actual analysis that was performed in those declarations literally draws a line from the language if we already have a plane limitation that says you have to attach the hydraulics that's that's already that's a separate plane limitation performed in the in the declarations are done we said there's a substantial difference in attaching at the end versus attaching in the middle it provides more stability and they said is you could put side rails there and that would that would be something that would solve the problem basically but that doesn't that's not a proper analysis of functional a result you can't to typecast as other elements and say that that's a way that you could achieve the same result even though not required by the claim the claim doesn't we have a ruling on this it's not part of the part of the appeal that there's no side where all requirements in the patent are designer so in a declaration that said by attaching it at a point far from the end you achieve better side to side stability in the way that she's talking about is that it pushes move to define the function earlier in the declaration he says that's just moving the box back and forth and that's done the same way because you're doing it from a low point on the box but you says is required by the claim to overcome that problem i just that just does not that's not an appropriate function result analysis to say that you do in fact have the same function away result to say that you need other elements we're going to hypothesize existence of other elements not as compact of adjustment for me and the hydraulics that we have that we don't have the mobility in our device that they talked about in the patent because the hydraulics being part of the base where they have wheels they try to put everything on top of the truck bed and have the two hydraulics in line we have a much longer hydraulics on the back of our container packer because we don't move it around the yard it just sits there so it's a it's a fundamentally different concept when you have what they talk about the patent which is one hydraulics on the transfer base view of the entire active order packer and we have one hydraulic that's entirely in a permanent base that sits on the bottom and then you have this container packet that sits on top of the whole thing and has its own system that's actually a different point in the appeal that we raised was that the other it reason we don't meet proximate end and that this is a this is another issue is on our container base and it's in the reply brief for example a photo of it there page twenty four it's excuse me on page twenty three and it's a fifty three i believe if it's in our brief it's fifty three we have rather than do everything in line the way they talk about in the patent container pack are the same proximate end issue that we talked about is present there that doesn't mean there's no way it can go all the way to the end to the be adjacent to that end of the container packer they didn't make a deal we are judgment also and there's a record of this that that packer blade never gets adjacent to the end of that to that and the same and we're talking out of the container that there was no that is something we submitted this report  punk common parlance this is a no brainer you're supposed to be touched or touched way far away that's not that's that's not the end it's nowhere near the end your declarations don't show me that it's only in substantially different than the end i think is that the packer blade does not retract all the way adjacent to that end and there is no deal we argument so if that would be an independent basis for a ferment i believe that the disapproved of the right thing on both of those grounds i'm just saying if there were if there was some discomfort about the deal we argument obviate the obvious question of fact of material facts here based upon the evidence that we send them all that means is that perhaps my friend has demonstrated that their machine the excludes all disclosed the monuments so unless this is one of those rare cases then supported by highly probative evidence then and i don't think that this reports claim construction the can be sustained and if i could have five more seconds i now understand that the court is uncomfortable with what we have proposed at summary judgment below excuse me a claim discussion below my friend proposed the construction that