to cost me good morning and may it please the court we're here today on the district court action side because the district court committed fundamental errors both of claim construction and putting the district court in appropriate leap into the shoes of the fact finder with respect to chew patents asserted by i p s group relating to single space parking meters that are solar panels solar powered and include the ability for the first time to use a credit card to pay for your parking and you see these parking meters outside the court there off of the country let me let me focus you personally over fifty four i think your honor in the claim construction which is reflected in the district court summary judgment decision that seems to me may be a bit questionable the same as you are that it has to be entirely with my understanding is that the record of the summary judgment record was not made in the light of that claim construction which the only after the motion and response was correct that is corrected the could and in fact your honor the claim construction changed in two places in the same order so if you look at a t p x twenty one vs as applied d p p x twenty four there's a difference in the use of the words between the claim construction and the as applied claim construction to include this concept of entirety ok so the experts in preparing their declarations weren't working from this new plane construction correct that's true you and then you submitted a series of declarations by rows in which said that there isn't much exactly right now i look at those rosing declarations and the problem that i see there i don't really see any conclusion by your expert that there's non infringement except on the theory that there are three separate there's a middle portion of the meter and let's let's assume that i would say i don't agree with that theory that there are three separate organs of the media as opposed to an upper portion or a portion i don't see on that assumption that your expert really find that there was infringement i believe that your honor so the claims are agnostic to the location of the buttons in the zero five four that for the button panel that constitutes infringement you don't have to show me where she says of twenty three it is talking about doctors responding to dr finney she says that the claim also requires that the area designated a lower portion have a shape and dimensions such as receivable within the housing base and single space parking meter says to her opening report paragraphs six but that's the reasons why the blue colored portion is receivable within the housekeeper's the blue color portion is only part of the lower portion that rests on her i agree i think she does say there are three components and only the bloom needs to be received within the housing base and it is received within the housing with what i'm missing is any statement by your expert that if it's a two component system that the lower portion is still receive within the base that's what's missing so we have identified you're pointing to that the gray box or the uncolored portion of that figure room can remain a portion of the lower portion so long as as a as as it doesn't the claims don't require that the entirety of the lower portion fit i don't see that she's but she said she does point to the lower portions being received within the sequence of the blue shape and being received with this rest report there i don't believe it does your honor that the great part can be part of the lower portion as well just the entirety of the lower portion need not fit with it that's the entire problem with the claim construction of the received within as applied by the district court here moreover  to the extent that you're saying that there is a portion outside of the of the lower portion that can be either a middle portion because the claim is open ended and secondly that can be another piece of a lower portion moreover your honor that liberty meter portion is absolutely scallop to fit directly with the end that you shape cut out in these conventional houses where you're out of wood historically put the coins in the me that you shape cut out is still there and that conceivably is part of the lower portion as well and in our figures in the patent figures three six and seven all of them demonstrate that there's a pretrial outside of that a i think the entire device is shown has that you to it has that you shape scallop which allows it to fit inside that housing element if you look at the figures of the pattern you'll see the housing which is identified with that you ship and the meter is designed to drop directly in the meter device is designed to drop directly in if that grey box didn't have behind it a cutout which is designed to fit inside or to to adapt to that you shape it would just sit on top it wouldn't go all the way in and seat as it's supposed to in that meter to allow for a cover to come over the top which is two it goes on but we've identified at least six different sites of their own internal documents and marketing materials which identify this as their meter as fitting in or fitting within the lower the lower  base there's also this issue of including in the close and adverse is open ended which i'd like to address with respect to the over five four as applied the district court applied to dimension plane and said everything north of that plane is upper and everything south of that plane is lower but the patent demonstrates that these are complex three dimensional structures and when the court actually applied that a p x twenty three she permitted error she didn't  e the possibility of having an alternative portion as we've talked about earlier today she said everything is either upper or lower and there can't be anything else that's upsets misapplying the transitional fleet freezing  to the three one zero there is we're here on the summary judgment but let me just say there is been no allegation of any kind of incorrect inventor ship with respect to three one zero in the district court  action with respect to the claim construction we believe the district court committed error there as well with respect to cover panel in the front face of the cover and the district court here required that the cover panel be one single element the uppermost single element that's not with the original claim construction was but that's the way she applied it and you can see that at a p x eat through ten for example she made a finding of factual finding incorrectly that the single the dome element is the cover kind and that's a p p x twenty one under international rectifier that's inappropriate court allowed or said that when you make multiple amendments over a series of art that the examiner knows about and you make those amendments including one amendment you don't apply the prosecution history the morning it was the court my name is josh tell them here on behalf of duncan parking technologies and the other police i'd like to start with a three time patent for the hope we can just get that out of the way pretty quickly the liberty meter that was accused in this case does not infringe the three  liberty meters keypad is on the parking meter device not on the cover panel portion of the meter housing as claimed in the independent claims of the three time patent and frankly it's not even a close call the district court as we submitted in a supplemental authority found this claim to be frivolous and determined there be an exceptional case and awarded fees based on the assertion of the three ten claims so let's look at the literal infringement and i want to focus in on one particular claim construction that is not challenged in this case which is of the cover panel has the upper structural component of the exterior casing again the liberty meters keypad is built into the device itself which is inserted into the housing that  not part of the exterior casing it is not housing nor does it become housing simply because the device is inserted into the housing base additionally it's not on the upper portion of the meter as required by the line the keypad sits well below the top level of the base so it doesn't meet the upper structural component limitation and additionally it's not structural the keypad doesn't bear weight it doesn't hold the meter together it simply hangs over the edge of the housing base like an umbrella on a door knob so there's no structural component to that feature either now i p s has claims that their expert or that the district court ignored their expert's opinion of infringement but as this court has already been noted the expert applied the application of prosecution history of softball is clear there was a narrowing amendment the claim went from an and original independent claim which had no limitation requiring buttons there was a dependent claim that included buttons but just generally on the front face of the meter i p s amended their claims overcome prior art showing buttons on the front face of the meter to limit the structure of the claim to mention two buttons on the cover panel what i  seeks to do now is undo that surrender of plame scope and find infringement the republic of buttons that are on the front face that's exactly what they surrendered and what they can't get back now they claim that this amendment was not for the purpose wording consume presumption first of all says that it there's a presumption that it is they've done nothing to rebut that presumption they presented no evidence in the intrinsic record that shows the amendment was made for any purpose other than palatability additionally they contend that they didn't surrender or that the claim scope they surrendered was tangential here again the festool presumption assumed that asserts that the scope surrendered is from no buttons at all all the way to buttons on the cover panel which we fall within but more importantly the prior art that they amended the claim to overcome had buttons on the front face of the meter as a result there are men meant when they told the examiner that we are adding this housing as configure to overcome the prior surrendered the concept of simply placing buttons on the front face of the meter and limit of them to buttons on the cover panel and since those don't appear in the accused device no infringement of this retest yes and i believe this court has the authority to decide either issue as it sees fit i do not today i can't cite you authority with regard to whether the standing terminates when under the present school of products in the marketplace i don't believe there's anything else implicated by the three ton but i can't say that with certainty right now now the liberty meter doesn't infringe the old fin could for sure i think there's a difference between protruding which i p s has contended that the queen slot in figures three protrude slightly from how the mace and what the liberty keypad those which is it sticks out and comes down and extends far out that because of the keypad extends outside and over the housing base that the lower portion is not receivable within and again i think the critical component here is not just the term receivable within its shape and dimension be receivable within and we're talking about that in the context of the lower portion so you might be able under point in order meaning to argue as i p s does that putting the meter in the housing base with parts sticking out is receivable within but when you talk about the lower portion being what i or the have the shape and dimensions to be receivable within what that means to me is that that is the part that actually has to be inside the housing base now the plaintiffs have argued that  ordinary meaning was the or i'm sorry that the courts construction was incorrect because she construed it at all their argument as she should have simply left it at the plane in order meaning of perceivable with it and we're sitting here today the timing may have something to do with whether they made a record when they knew this was an issue yet and i think it was an issue they may they may simply have misremembered but this issue was discussed in detail during the pla sixteen three through twelve the district court said i'm sorry i think i've lost your the page i'm sorry it's appendix one six six six zero and it's a one sixteen three through twelve the district court said the distinction of the plaintiffs made in the prosecution history was that the prior art had some of these features were not within the housing unit they were fitted to in some way outside it but were limited to a device that is going to be in this housing unit which fundamentally it's a device  single spaced parking meter so the whole thing has got to fit in this housing base the pot on part has to be squarely within the base within it size and dimension so the courts construction projects have come as a surprise  we're talking about two different things here the and the entirely within construction we didn't all wrong since until late in the case of the entire sum we judgment record was made they did not have any notice of that construction when they were preparing their papers and i think there's a real question as to whether that construction right now we're talking about a different issue which is whether something which recruits a lot or has an over regard to the coin slot in figure for where the arms are for your three where the district court judge said that she didn't believe that that figure necessarily showed the coins operating out protruding outside of the housing base but the was the entirely within days earlier that i don't see the record and i don't know why you're arguing that was well what i'm what i'm talking about is that the judges impression of perceivable within was made clear at the claim construction in the one yes she said the whole thing has got to fit in this housing base of the bottom part has to be squarely within the basic and you can argue the way you want it seems to me very clear that she changed the claim for instruction half to the summer eve papers were filed in this one respect i respectfully disagree but the the other issue is i don't believe that entirely is i think when if you read the judge's claim construction order entirely wasn't actually part of her construction she she further explained that what she meant was entirely but i think entirely is covered by the plain in ordinary language here it's not again they are advocating the plain in ordinary language but something that is has the shape and dimensions to be receivable within asked to be inside and the court construed receivable to be capable of being contained and within to be inside i don't think those are yeah and this is this is where she entered the construction or she discussed the construction of or see well what we're talking about the earlier claim construction that govern when the parties filed their papers not some other construction that s wide leader after the papers were submit it was the construction that was used in the summary judgment briefing the issue there your honor is i don't believe receivable within was construed in that order as i said that the issue was discussed at the hearing but receivable within was not one of the terms of or construed in the parties submitted expert reports presenting their own positions that's what brought together the disagreement with regard to the construction receival within and you were arguing in your summary judgment papers that had to be   device to be received entirely within the keypad cannot overhang the housing base it's i came across the same site sadly that you had earlier now as mike my learned friend here just acknowledged this issue of entirely within the receivable within was not construed at all during the preparation of the expert reports i would submit that that particular paragraph that you're on or happened upon that paired up to twenty eight of that expert with the doctor as an expert you cite it does get us where we need to be but i believe we also said that in the event that and we hope there's remained here we would have the opportunity to at least address some of these some of these additional new claim constructions and just just to clarify did did either side ask for a construction of the receivable know this well this came up on the line and sorry it's not just that there wasn't one as part of the claim construction order in december of twenty sixteen is it also true that that was not presented by the parties in their clean construction briefs i believe that is absolutely correct because we didn't think there would be an issue about receivable within it seems to us that it may nor a meaning would make sense if you can fit your meter in that housing the sort of summary judgment was based on  both sides was based on played in order exactly at least in terms of receivable then and i believe that the court's order a page twenty one acknowledges exactly that that receiver within is being construed for the first time year and i no e also that receivable within was construed with no citation to any entrance evidence so what we would ask you on a well i don't spend too much time on the three one zero it was suggested that we didn't raise the question or it somehow waived the issue with respect to the construction of cover panel we had not below it apx ninety five sixteen i pointed that out in the district court and certainly in our opening brief a page forty two no twelve we raised that issue here as