format and found it indefinite and claims fifteen to thirty five but she construed it to be we'll ninety six and claim thirty three if we conclude that the board properly construed body in claims thirty three and thirty four and therefore bound not infringement based on that would back nine franzman finding and that construction of the body applied to all the other claims so under that the media the media rights case for it says that the undertaking you should look at the spec in light of the plain language and see if there's sufficient structure there and then when the court starts its an also claim thirty three is the method claim or she can swear the judge construed the claim and and the only difference between those that claim and claim fifteen is that claim fifteen is basically a longer list of elements and claim thirty three puts them all together in a functional accurate and for some reason the court thought that because a put together the functional package it was somehow construal but when you have a list of claim elements it was not any kind of indefinite us with respect to that claim all because it's maybe the result is that she was wrong inval is that when you say no because we didn't assert them i mean no yeah no i think you're saying i think there are some one twelve issues with some of those especially with eighteen and twenty i think or twenty says or the activation mechanism is is something that was but i don't think you know again if there's a case it says of the pending claim pail can't waive the independent claim dog and that's what's happening here you can't have this problem of the defendant claims flow up and take the independent claims that's just not the way it being is to expand the blade but again the structure that does that we're looking at the manually actuated activation mechanism is only one thing you touch with your hands and really touch with your hands to expand the blades of the knob or the wheel broadly and read it thoroughly that the size of the barrel is never discussed it's not an issue anywhere and yet we end up with a situation where now the barrel is is is we have to trim the size of the barrel i want to before you get too into their own merits i want to understand your point that you say that the validity issues don't need to be addressed if we affirm on an infringement is that because you  i would like to address a couple of the points that that council made regarding this issue of the of the body and in particular the arguments regarding the viewport this notion that that certain components that are required by the dependent planes are in fact can can be found on the shaft as distinct from the barrel and the problem with that is that that is really contrary to what the specification teaches council referred to i think figure one figure two as depicting what is purportedly a viewport on the shaft but the issue is that's not what the specification says the specification does not say that there's a few hundred on the shaft the specification in column three this is that appendix sixty seven refers to a guide member one eighty two having a threaded shaft one ninety and a pin to twelve and those components are the date indicator door to fourteen and so there is no depiction no description in the specification of a viewport in the first in body meant that is on on the shaft similarly counsel referred for the very first time during argument the smore ning the figure thirteen and talked about  the element that i believe is depicted as number one twenty eight in that figure but that is inserted into again and it's in the barrel that is a separate component it's not the shaft it's a separate component and it goes into the barrel and this is really where the dependent claims are so instructive and really fatal to the plaintiffs  and the appellant's position we have three dependent claims that require that the body includes a viewport three further dependent claims that require that the body includes indicators and then three more dependent claims that say that the body constrains complete control not within its proxima lance we have nine dependent claims out of twenty nine that were added during prosecution reissue prosecution that require these extra these additional elements as part of that that the body must be capable of having her capable of accommodating all of those are located on the power and that's consistent with what the specification teaches the specification describes the narrower shaft and the enlarged barrel as a combined structure having all of the features required for body  and more specifically in the first and second embodiments these components the viewport indicator and blade control number wheel are all described expressly as being located on the barrel counsel referred  to get away from the un asserted defendant claims and say well it's really inappropriate to look at them and he pointed to the power integrations case the parent a gracious case is really a different case in that case there and independent claim with a specific term or phrase and then dependent claims with a similar but not identical claim claim term in this case we have the same cla they also argue that the district court's construction is incorrect because the barrel cannot engage bone but the claims don't require that the barreling gauge the bones they don't require that the device can gauge with bone along its entire flank and in fact in the district court they argued for a clean construction of the size and configured to engage bone term to be shaped to be used in bone and positions with respect to body simply cannot be reconciled with the intrinsic record or for that matter the extremes of record it's not necessary to look here at the extrinsic evidence but we detail that in our brief and we believe that the district court's construction is entirely consistent with the intrinsic record and should be affirmed if i mail turned to the so the section one twelve part of six issue in the activation mechanism term problem when we look at the specification we see that when we look at the function so looking at the function in claims fifteen and thirty five the function is to expand the blades from a fully retract the specification teaches and this is clear from portions of the specification quoted in my friend's brief it teaches that the knob or the wheel initiate the movement but the movement then  moving a blade carrier so as to drive a blade set to the a pivot only attached to the blade carrier from the first retracted position to a more expanded position so in that case the district court was able to look and say well move the only part that's manually activated is the not right correct the only part that is touched by hand operated by hand is the wheel or the knob however function in the function is broader than simply initiating the movement the function is the entire process the entire movement secondly we run into this significant problem with these dependent planes dependent planes that say these are dependent claims that they wrote and put into their patent and i would submit they have to mean something and have to show that there is just real confusion and lack of clarity about what this so we would contend your honour's that this report didn't properly conclude that the term is a means plus function term and that it is indefinite hence that claims fifteen and thirty five concedes that there cannot be any infringement but secondly there is no evidence of direct infringement first of all their own expert their technical expert mr allen agreed to claim thirty three requires that there has to be full expansion of the blades their medical expert dr morgan said there are many surgical conditions where it would be inappropriate to fully expand the bla and then their position on direct infringement really rests entirely upon the testimony very brief deposition testimony of a third party surgeon dr brandon golf but dr god's testimony is  unclear certainly not sufficient for any finding of direct infringement he testified that when he was shown a device marked as an exhibit at the deposition he couldn't recognize whether or not it was the accused device he couldn't remember how he had learned to use this to face and he was never asked in his deposition whether or not he had ever fully expanded the blades on the accused device during the course of one of the two the only ever performed to surgical  procedures using this particular device and he he couldn't remember whether or not and you or i should say he was never asked whether or not he had fully expanded the blades and that's in the record  appendix four ten four sixteen and four seventeen and so we submit to your honor's that the there is absolutely a lack of evidence of direct infringement no basis to grant appellants request for entry of judgment of direct infringement and we submit that their positions with respect to the claim construction issues are at odds with the colleague here said that just this element number twenty eight is part of the body but it's not a part of the barrel i mean in this not if you look up a figure twelve you can see that the thread to go on the end of the blade guide and the knob the courts can't construction of sizing configured to a gauge bone which is not on appeal the court said shape to be used to engage bone and related to shoot so then the question is how does the barrel if the barrel is going to be part of the body how does it how is the barrel shaped to be used to engage bone and related to shoot and there isn't a single sentence in the specification of mentions the barrel somehow engaging ball and related issue and i think