the drying of was not substantial and if the process as a whole conventional it then held that al vision didn't infringe on that basis so measured against the original disclaimer precluded a finding of non infringement there would be bottom drying and therefore the product could not have been dried soley using conventional convection your drive from the top and the bottom drying would have included conduction drying and therefore would not have been accomplished using so all the convection air drying from the top of course the original articulation of the disclaimer didn't rippling wouldn't alone render the technique unconventional that thirteen this was the touchdown in the the claim construction opinion the al vision case it was treated it s listed as being one factor but there is no consideration given of that factor in the opinion instead what was found was the entire process was conventional the court then examined th used and i think this is very important you'll see at page fourteen of the appendix the court's discussion of zone drying and what it says is the patent does doesn't it the patent doesn't disclose doesn't just mentions on driving it describes it as another method of controlling the drying process and as producing the control drying effect of the present invention and this is at appendix three forty eight column thirty two lines thirty nine through forty continuing with the present invention language at sixty three through sixty four it don't drying at length over two columns thirty two thirty three and six states that it can be used to dry the film without surface skinning which means rippling in this context that's at three forty eight column thirty two winds forty nine through fifty and don't take my word for it being used interchangeably i'm going to give you the cite for that three forty three is the appendix page column twenty two line fifty one and then three forty fourth column twenty three line to the five one four patent teaches that zone dr avoids the rippling effect by drying the film slowly at first and then more rapidly later on what the fi this is described in the patent as a way to control a dry film so as to maintain uniformity and avoid replying with the district court dismissed zone drawing as conventional and therefore disclaimed because of looking at it there isn't a definition in this pond of conventional or unconventional for conventional what we have is and this is in column three a couple of times it refers to methods used conventional  drying methods used generally use drying the vince drying tunnels and the like the word unconventional is not distinguished from it instead it's controlled drawing methods and we see it in color  in common for what we see in the second paragraph under summary of the invention is a further aspect of the present invention and methods of forming the films of this invention are provided by webcasting methods of the manner of drying and then it says preferably the film is dried initially only applying feet to the bottom side of the film and that explains is done to you to avoid this uniformity so that's  so here we are the american clearly says control drying methods can be used ok we would argue nowhere does it say you can't use conventional methods but how do we read accountant that's recommend it that's do you control drying methods over multiple columns as somehow those are of no moment or disclaimed by an earlier column in the past and there's nothing like that in the wall of the screen for we even see a couple of columns earlier it can't be that conventional means known or unknown instead what a careful reading of that and shows is there is some criticism of conventional techniques that don't control the parameters and the patent over more than thirty columns describes those parameters how to control them it talks about the best way to mix the best way to to cast the film it talks about controlling the fifty percent of the  slip opinion you'll see a bunch of blah quotes of things that purportedly support a disclaimer in most of those it says things like preferably normal terms to one of those preferably references was the one to bottom embodiments disclosed contemplated here in will have a particular structure the structure appears in drawing in the patent we don't have anything like that here the words present invention are war with each other which i think is a fact the sexually that the version of disclaimer that's positive here about joan's wind that certain columns trump those zone drying descriptions are the men who need description  something that i was i was struck by when i was looking at how the jinns brief is they say they they they came upon their process they changed their process after that we're all calling instruction and we get i would ask why  present this doesn't doesn't make sense it doesn't hold true this is no different i now understand that this record clearly struggled with articulating the scope of the disclaimer but this is the same as having a clean construction that changes with each with each iteration to match an accused product it can't be the case that we have a disclaimer of uncertain scope your honor may please the court inventors clearly and unmistakably slain films that are dried using soley conventional convection air drying from the top of the district court properly construed these sort of claims to give meaning to this disclaimer after weighing competing testimony presented during a full trial on the merits of the district court correctly determined as a factual matter that elision dries its films using a silly conventional convection air drying from the top process this is precisely what the five one four pattern disclaims in give your has not shown clear error in this finding in some of the district court's judgment should be affirmed in all respects let's turn first to the claim destruction issue the specification repeatedly disparages conventional convection air drying from the top this method causes rippling and is not able to achieve drug content uniformity as required by the claims there are no fewer than five separate and distinct portions of the where the inventor stated that conventional drying methods will not result in uniform film if these include counts three eight nine twenty two and twenty eight the most telling of all of these provisions is in count twenty eight that we've heard something about this morning lines fifty seven fifty from the specification states at that point and i quote conventional convection air drying from the top is not employed this portion of the specification goes on to state that conventional top only drawing is disclaim because it leads to nine uniform films due to a rippling problem and there is another statement of disavowal in the specification that column twenty two lines forty one to forty seven the specification provides that conventional drawing techniques directed to the top surface of the film cause complications including rippling that leads to non uniform there are other disclaimers in the specification as well cons three eight nine specification further disparages conventional drawing methods as on able to produce uniform films even in the description of the drawings income seventy there's a clear distinction between films dried by the conventional dry processes and those dried by the inventor dr has taken together these statements establish drying methods matter inventors told the public that conventional type only drawing processes will not work to produce uniform films and this is exactly what does elgin does what is disclaimed importantly there to discuss the alone cannot control uniformity for films that must be drug it's not a substitute for films that must be dried the pen does disclose certain procedures methods the hot milk extrusion for one but it does not involve drying not change the fact that for processes that do involve drying the claim processes the there is a clear disclaimer of conventional convection air drying from the top is that if you're  a conventional process that's what the court found the court actually found as a matter of fact that elegance process envisions uses ongoing process and that is a conventional process that's that's part of the court's opinion so as a matter of fact there is no dispute isn't there they meet the word but the disclosure of zone drawing does not describe what type of air is used it does not describe whether it's air or microwave it does not describe whether it's on the top or on the bottom there is nothing in the zone drawing description of the pattern that suggests that conventional convection air drying from the top will work in such a process the disclaimer applies this disclaimer in column twenty eight applies whether it's a single zone or multiple zones it's not the think my friend mentioned that zones are somehow somehow do that rippling exist well with a silly conventional air drying process from the top and it makes no sense to think that somehow when you do a process more you would avoid replacing you more and more zones would ripple if you have a rippling problem in a single zone you'd have it in a multiple zone process therefore it's appropriate in our view to read this discussion of his own drawing consisted with a disclaimer in the specification and the prosecution their opening review that the chen reference is a zone dryer so to say somehow that zone drawing section income thirty two of the head undoes the prosecution makes no sense that they disclaim is own a process that involves singh prosecution and should not now be permitted to somehow bring back in his own drying to do something that's been disclaimed there's been a discussion of soley this morning a bit let me touch on that your honor soley was added to the claims during the d l markman proceeding and this is at eight two zero five one four to read out an embodiment of the claims where there is both drawing from the top and right from the bottom it does not limit the disclaimer to those processes that have no bottom drawing whatsoever the the the court found in its decision the district court that evidence drying process is conventional so whether or not  court applied its claim to structurally put it that way the court quite as plaintiff struction and said is a conventional convection tough air process plants are basically attempting to construe the construction was solely to somehow focus on a bottom drying has not been shown to be controlled or substantial the district court this is a seventeen said bottom drying is at most and in substantial amount so the fact that drawing and employs conventional convection aired processes where there is a conventional amount of bottom drawing if at all and in fact again the disregard found him on the bottom drying process there it has been shown not shown to be controlled or substantial it's most at most insubstantial specification the same specification to reach a different result the zone zone drawing discussion doesn't change the panel's decision in that case let me briefly touch on our cross appeal at this point in cases like assist technologies and johns hopkins the rules of game change when a new construction is adopted i just want to make sure the court knows that in the event that there is a reversal on the claim construction of allerg bottom of the oven and as a result the web drags along the bottom of the oven for certain periods of time and also touches hot drag bars so there had to be bottom drying the question is the court said there is bottom drying below the question is is a finding that it's insubstantial does that matter given a claim construction and the scope of a disclaimer that uses the word so so i think that that's at the end of the day the the issue there's not an issue of fact it has to do with the scope of the disclaimer and whether this court gives new meaning to the word solely which the district court put in because of patent i believe a column twenty two and there's also an earlier discussion which would be referenced in our brief on it drives it to quickly show zone drier allows you to step up the drying process by changing the temperature from equipment is used then somehow it's part of something that's disclaimed we heard that a strobe bush reference taught bottom driving what exactly is it that would be within the scope of the claims if all you do is hunt for some prior use of the drying technique when the patents are conflicts ition claims their composition claims that meta a need for a uniform film there there was no sublingual film before this point in time because particulate matter couldn't do couldn't be dried and processed and cast in a way in which uniformity would be preserved and dried in this composition claim it's not even used in the claim as a process that what it refers to when you can see this when you look at claim sixty two  talks about the state of the matrix before casting or drying so it's not the case that there's even a step here of drying it's true that final cast films will be dried but these are composition coins and you can see this very clearly in claim sixty two which is the independent claim at issue i want to just coast one question before my time is nearly on column four i pointed to the language clearly identifying an alternative to any type of control dr we don't hear an answer about that it can't be referring to extruded films because they don't require additional solvent they aren't dry they're cool and in column three which i've heard a long list most of it's discussed i think all of that in our brief about column three about all of that the shortcomings of conventional drying techniques didn't hear a word about what it says right below what was quoted to you the conventional drawing methods themselves are unable to provide uniform is focused on thin films that's in the abstract and there's a stated preference in column twenty two of the thickness of the films is less than about three hundred needed my grounds for example less than about two hundred  got to do is follow the teachings of the patent whether it's choosing the right polymers a thickness of the film that's appropriate or the other many many teachings in this part about how to control discussing the mixing process and drawing and you'll end up with a uniform film so it can't be the case that this that this patent disclaims any particular drying methods and i don't think that there's any any coheren that the larger basis for the patentability of this film this was the first time that that any body had been able to master all of the different parameters that go into th into making a film earlier i pointed to a passage talking about interaction it's about interaction of all of the different process steps of finding the right viscosity and then knowing what to do with it going forward so there's a recommendation about how to cast the film that's the reverse role casting process is said to reliably deliver films that are of a uniform fitness particular views of dr blade there are all kinds of parameters set forth and the secondary literature and this is something that's part of the other case that we pointed to recites time and again the difficulties in a team obtaining uniform films has particulate matter falling out moving from side to side and or more from top to bottom and this particularly that difficult if you're doing what what if you're making a continuous sheet of film and then it talks about the advantages of bottom drawing but also talks about the importance of having the right viscosity how to mix the film dimensions vacuum mixing all of this isn't described in passing it's described in column after few got a composition claim it's not limited to the way that it's made that's the by and large rule it should be ample double here there's no disclaimer in any disclaimer couldn't possibly couldn't possibly include is one of those ways to avoid that so it couldn't possibly be the case that any disclaimer could could provide a non infringement defense to a company that follows the