internal grammar structure of the claim grammatically our term is polymer continuous liquid phase that's two adjectives continuous and liquid modifying an object now that the district court construction respectfully doesn't line up that way the district court construction treats the central object noun polymer and then it modify it modifies polymer with additional language addressing the liquid in the home or continuous restrictions in our view that is not the same as the structure our patent he gave in his claim by analogy if a claimant writes i claim is my invention a red truck wearing a hose for fighting fires that's categorically different from claiming  hose on a truck for fighting fires all the concepts are in play but the structure is different and respectfully we think that's the type of error the district court made and what is your construction so for the term liquid phase we urge that we're fifteen monomers in it would be in itself continuous and yet i assume you think that this term does not include a carrier fluid polymer that come with the term and it's what's what is what is it about your construction that would exclude that respect your honor i don't think it's our construction that excludes that i think it's the claim that excludes that what we're considering polymer continuous liquid phase that phase is going to be in this claimed method displaced into the formation so it's that x what we're just filling we look at what we're just placing and we say does it meet the definition of a polymer continuous liquid phase so if that's what we're displacing is seems like a weird use the word so certainly there are dictionaries in the record that use phase as a noun to describe a of the quote a solid some homogenous which are of reference and that's not the use in this pattern there are many instances of phases your honor noted i wouldn't say they are all different i would say they all use phase the same but in every instance it's restricted by some attached modifier polymer face continuous face is external facing the face itself is used as a general term of reference to identify some component of the well system some material component if we're addressing a single component we could just say the polymer phase if we're addressing some broader component we might address the entire liquid phase we might address an external phase if it's dispersed we might address an internal phase if the thing we're talking about i continuous and i ask you something if the pattern talks about discontinuous and says or and all and then it says continuous or extra no what i don't understand what internal and external is in that context or synonyms i think within this discussion of analyzing a mixture for a discontinuous aspect and the continuous aspect they are synonyms internal means the fit the phase of the aspect of the system that doesn't extend uninterrupted if it's broken up in some way like oil droplets in water extra means plea the larger kind of more extensive phase if our mixture of oil droplets and water it's the i think that they have ordinary meaning in this field i don't think the pattern is using either continuous or internal or external in any kind of new or nonstandard fashion before the district court we had some dictionaries that went into continuous i don't recall if they made it into the record up here and i'm not sure they were cited by the parties but they were in the record before th about little anchor little man walking along i think we may have colored that in a little but i do recall one dictionary did describe tracing a path from one place to the other and i think the aunt may have been color i added at one point what is your best support specification for your interpretation of continuous within the specification i think we have a lot of support for ten years i think chief is the figure to even today show the polymer an uninterrupted fashion moving around or extending around i think also column the bottom of column seven the top of column eight describe how this invention works by accumulating polymer bringing it together when it goes in the wellbore it's in pellets or particles that are not brought together they must be brought together accumulation is by cracking the particles to get that close packing that's how you get solid particles into this configuration you packed them together in some way collimate line thirty three describes using solid liquid separation to accomplish it we're going to separate the liquid probably a more technical way to describe being able to we feel good about uninterrupted i actually think at this stage between these parties the orderly meaning of continuous is not disputed i think we agree it means it means u evidence saying that applying an adjective to the phase at the claim does is different from applying an adjective to the polymer as the district court did i think let me just try to ask the question that i was trying to formulate a great at the beginning how much of the problem needs to be interrupted again i think it's a it's region of interest type inquiry we look at what's being displaced and then in that mali and that's being displaced  polymer extent on to route uninterrupted across it i don't think there's a quantitative measure of you know so many particles so many one million or something like that i think it is this is true jury inquiry where it's going to look at the displacement from the wellbore into the formation as the claim describes and say is what's being displaced upon a continuous liquid face we did through that i think a jury would take technical evidence from that we would gather from schlumberger about its operations they would look at the materials going in the timing the active displacement how it's accomplished and then they would hear expert testimony in fact testimony about whether what's being displaced is in fact continuous liquid phase under the appropriate construction i think that's classic nature of the evidence for example that i think at that point you could say yeah that probably is uninterrupted we can imagine other poem pellets or particle shapes where the given percent volume might not be as informative as to whether it's polymer continues or not this is the kind of thing that is classic jury function is to look at the evidence have a clear understanding that polymer can use means uninterrupted and then try to away from the technical material isn't in fact on into up at the time it moves from the wellbore into the formation equatable direction abruptly quit phase what exactly he says these particles are close packed that in the immediate preceeding sentence for closed act particles i think the fifty percent restriction makes sense we can readily imagine that we've added a different particle say a long fibrous fart of a particle which would be one available for use here then you could look like if i get a fish net type structure where you have the necessary uninterrupted ness but the volume percentage is lower i think the patent here does not articulate a quantitative restriction like the district  running from time answer the question about the liquid as to the meaning of liquid we've given what we think is a classic physical definition it has a fixed volume it takes the shape of its container i don't hear the police disputing that that's the classic physical definition of a liquid we would then say for the inquiry here is there a phase that is liquid if there is then that aspect of the claim is satisfied if there isn't then it isn't in our view a phase could be polymer or a mixture of polymer and carrier fluid so the liquidity could come from the polymer that's available but it could also come from some other aspect of the system such as from carrier fluid and what if anything is the patent or anything else in our record i think the there the answer could be really not much but i think the answer is not much but it's not zero either i think what this plan does is incorporate by reference a previous patent but the same one same inventor some other  temperatures so we can glean something in what kind of range it was with you but you made a point about the difference between the glass transitions in temperature of fifty five degrees centigrade and the melting temperatures at least i think of that  one hundred and eighty degrees centigrade and so i'm trying to understand if we can infer anything about the liquid or not liquid state of the column or from any information we have about the expected temperatures  take the point that i think the point of making the briefing is that polymers are not like classical crystals as they have as they are she did they don't do an immediate phase transition from solid to liquid there's a softening that occurs over time  my understanding of the physics here is that these wells underground it gets pretty hot but it doesn't necessarily get hot enough to melt the polymer and i think it's because of this that we think the references here to liquid are properly phase is the reference used to receive that modifier so if it refers to well material potentially it could include all the well material that could go that broad depending on what modifiers attached to it but for a term like polymer continuous phase it is addressing an aspect of the well the right one discontinuous and internal are synonymous continuous the next journal are synonymous and how the question is what does that mean in the context of the phrase that we're dealing with a liquid phase what that means  a liquid phase where everything's liquid the continuous component is the one that's doing the carrying and the discontinuous is the one that's being carried that's why if you're all you're measuring as a liquid the fifty percent turnover point between continuous and discontinuous makes sense so after if i can describe what the patent claims and what set out clearly in the specification you have a wellbore they're putting polymer pellets in a top that's describ formation at that stage with the patent teaches in column eight as it expressly describes the transition from discontinuous to continuous and it says that you know your polymer phase becomes a continuous liquid phase when the my my friend on the other side said well it's really a question of looking at the claim we have a phase what kind of a phase solid liquid or gas it's liquid ok now what's the modifier it's a continuous liquid phase so what that means is within this liquid this this overall mixture of liquid the thing that we're talking about needs to be continuous and that means it needs to be more than fifty percent by volume because at this stage that continuous component is going to do the carrying of what happens next and it brief a twenty seven let's look at the delivery for twenty five there's a statement in here that i think sets up some of the asian and it's it's candidly just an erroneous quote from the patent if we look at the last nd so the yellow brief of twenty five years it says figure to depicts a quote polymer continuous liquid phase twenty nine that's erroneous you'll find that nowhere in the past but if you go to the next page immediately following twenty six of their yellow brief you see figure as we colorized it and then you see a correct quote which explains and i think will answer your question just stole it's a correct quote but with an incorrect emphasis what it says is figure two e illustrates element twenty nine  emphasized now the emphasis goes away of what of the proppant laden then it tells us polymer continuous liquid phase fracturing fluid twenty nine is not the polymer continuous liquid phase and i think candidly it's my fault for not explaining this well enough below i think that's why judge misapprehended our position a little bit twenty four is the polymer continuous liquid phase twenty nine is the laden polymer continuous phase liquid phase fracture fluid is forming the polymer twenty four dollars now if you look at figure to see you see the pellets those are the ones that go in at the top and then it it says it becomes the continuous or external phase carries the proppant now if you look at figure i mean sorry column for column four is describing this and column forces figures to a through to illustrate pellets of degradable polymer with and without proppant before and after the  to form the polymer continue with liquid faith and that's not just notable for what it says your honor it's even more notable because in the provisional application that's not what it said in the provisional application this is dollars the original application said that figures to a through to e were depictions of a polymer continuous phase and the patent examiner said that's not good enough you're not telling us what the state of matter is you need to define it and the patentee changed the language describing figures to a three to eat and changed it from polymer continuous phase to polymer continuous liquid phase so if you look at figure to be what you see is a continuous phase a polymer twenty four used to be rigid solid pellets has now become liquefied in that continuous phase it's carrying the proppant and it had it's also going to carry some of that curious fluid as it does the fracturing that's precisely what's described in column eight that distinction and transition from discontinuous to continuous phase and it's exactly what set forth and plenty more wine as well as in claim twenty four dollars when it talks about the conversion of the slurry slurry as the discontinuous polymer pellets with carrier fluid conversion into a continuous liquid phase and that's exactly what column for tells us that figure t what is continuous a liquid phase that's that's in the claim language itself nd of all it's the court looks in addition to the one place in the prosecution history that i already pointed out there's a nd place in the prosecution history so  sticky semi solid then to a viscous liquid and then it talks about it goes from the well bore into the formation as a liquid now if you look at the prosecution history again this is again appendix that to two  gels aren't necessarily liquids the patent examiner said that's not clear enough and so there was an amendment and that very language thermoplastic was changed and it said that the president vention starts as a rigid solid it's the provisional application so the provisional application had that language and then the it was required to be changed in the site for that is two dollars to three dollars to with the st one that i talked to you about on the figure two e and the one that i've just been discussing is that two thousand two hundred and thirty three so the you know your question your honor is the claim language talks about what is continuous it's a liquid fades by the same token if you look at the the clarification which is in a clarification of the plain meaning of what the word continuous means in a phase where the phase is entirely liquid well how does something become the majority the external or the thing that's doing the carrying when what you have is fifty percent of the power supply for this is what goes back to the yellow brief your honor which because was i but i think it is our position that there was a straw man put out that that one hundred and twenty nine we argued allegedly needed to be all liquid we never said that what we said is twenty four in figure two e needs to be polymer that's in a liquid state which is what the judge found now i think what the what the judge confused was that characterization which you know we know  in the in the in the read brief it twenty six and footnote nine was not our position but what i think the judge thought was well you're saying slumbers they all of figure two he needs to be linked with that can't be right because there's property of sand in there that's a missta that's a transcript from the claim construction hearing and we've had some discussions about we were in those sorts of things and what i want to make sure that the court sees is that the district court on two thousand four hundred and twenty nine expressly asked and our polls counsel about this place judge rein of that you're asking about in column a and then the court said well look at the next sentence when the degradable palmer becomes the continuous or external phase the fraction of the degradable palmer will have increased to greater than fifty percent  by volume of course means that both witnesses and so the district court asked in a post counsel this during the hearing what does enter paul's counsel say over the next page and a half he says all this tells us that it's accumulated sufficiently so that we have a concentration of fifty per that that interpretation is correct now to the extent brother gets up and says well the court misunderstood what we meant by that we were talking about it doesn't necessarily have to be liquid i would submit to the court to look at that component of the transcript and make its own judgment about that but regardless if there was an issue with the fifty percent it was either expressly addressed by counsel during the claim construction hearing or should have been taken up afterwards so let's  course focus on the specific puts the claim language and just take as an assumption that if only because of a little dash between the word problem or the word in us that i don't think that a claim language expres indicates a problem or asked to be entirely so what else is there that pushes us in that direction so if we look at column seven lines twelve to eighteen the one that i briefly already described the polymer starts as a rigid solid becomes a through a plastic mass then a sticky semi solid and then transitions into a this gas liquid if we see column nine at lines forty four dollars to forty six  talks about using softening agents or solvents to accelerate the polymer becoming a continuous phase of fluid fluid obviously is liquid and then i would also submit to the court  column five lines six to approximately ten where it talks about the fracturing fluid used here in is quite different from fluids that are normally used in which the degradable polymer is dispersed in a liquid to increase the visc faves so so i believe your honor that those sites in the spec support of clean meaning in additionally the prosecution history in the two places where i've discussed where the applicant was required to change polymer continuous phase t that's claimed the polymer continuous liquid phase talks about slowly in connection with it being a fluid or a liquid and it talks about its transition from that rigid solid that starts out at the top of the wellbore and transitioning form and the point you're raising your honor in your questioning is here's the problem i think what enter pole is hoping to do is get a remand where it can argue that some metaphysical amount of collected polymers there's really very well so the problem  stipulation if again relates to the issue i mean the problem with the stipulation is we have a general judgement that was entered over our objection and my opinion is no different than a general jury verdict if we had had a situation where enter poll had jury asked for a general verdict and there were three alternative bases for us to have a finding of non infringement this court wouldn't entertain it coming here and saying there's not substantial evidence for one of those and therefore you should remain and that's effectively what they've done here they've by by choice sought a general judgment that doesn't differentiate the basis of non a trencherman of these three different components of the claim construction each of which we believe is independently dis positive and they've come up here and there either which i don't believe because these are knowledgeable counsel know this court's law they're either asking for an advisory verdict on two of those components or those components are dispositive so i would submit your honor substantially liquid majority liquid but what we have to avoid is the construction that creates the purported fact issue out of metaphysical in significant amounts polymer and if you look at the depending if you look at the appendix  picture from the patent this is from our product literature and it's what i think is unfair on the x your honor is the court it's it's referenced in the it's referenced in the record although it's not expressly in the record but before discovery even started in this case before there was any discovery whatsoever we went to enter poll with a detailed sworn declaration sixty six paragraphs fourteen exhibits and we provided one hundred and thirty five pounds of polymer for them to test and we explain why we believed under any kind of reasonable construction this case shouldn't go forward so to the extent the court says well maybe there was enough fact development i'm not sure that the parties knew enough to understand how to clarify the claim construction issue so these three separate components were clear  h that's just not true we did that as officers of the court to try to avoid an expensive litigation and enter paul having told district court these questions about the specificity of judgment are issues go for the federal circuit not for you judge and then come here and say well these questions about claim construction to the extent there's ambiguity you should remand and those are factors shoes for the jury i would submit that that's not the right result the right result is each of these three independent bases should be requirements and separate bases for construction with these interrelated issues there has to be polymer in a liquid state that exceeds fifty percent volume by weight or i'm sorry fifty percent by volume of the fluid that does the fraction these are all gingerbread they just to double check something you would question would be what does the evidence show as true as opposed to what you do certainly your honor i will know discovery had not closed in this case so we would expect discovery conclude and then if we don't have a leg to stand on we expect a rapid summary judgment motion externality saying yes once it's can once the polymer is continuous and that's and that's that is playing on the on the language of the claim then it is also there for external and if the whole thing is phase the patent teaches that broader than just a single element judge stall you had some question about why the apple e is so vigilant to try to argue there must be entirely liquid and this is the nature of its liquid certainly judge kills drops holding was that fifty percent had to be liquid ok we don't agree with that and i'd like to have some discussion of my resorting to me during there's some discussion to point from that number one i think counts for says liquid phase it requires a phase that is liquid it requires that there be continuous pomo it does not require that that polymer be liquid it is possible in the patent teaches how to have continuous solid the fifty percent that the district limitation is present in the patent but it is not describing that material becoming liquid and my it's certainly that's most the words the patent uses it says a piece describes continuous but the patent is saying these are particles that are becoming continuous in this environment are those particles reaching a volume percentage of fifty percent yes are they liquid no i think respectfully expert in them as this case moves forward to trial i have no doubt they'll be fact finding on this point i'd like to briefly discuss this point that you're out of time and what interests them are so i think the final point i mean we heard that of restriction or exclusion that's not present here this court from g e lighting and other cases generally construes claims to cover the description there's extensive description of polymer not degrading it's in our table column thirteen the middle of column thirteen expressly describes a