this court's law is clear the proper construction of the claim term can usually be resolved on the intrinsic evidence alone in this case is no exception to district court error here was elevating a dictionary definition over that intrinsic evidence and that error was the result of  cascading series of mistakes the court discounted clear language in the specification based on its own theory outside the record and then it used that theory to discount other evidence in the intrinsic record it even adopted a score card approach at one time it  numbers and all of your argument but you know the opting for me at least you've been around almost as long as i have is still up rejection of the premise the dictionary definitions went to the fact started off by looking at the planet or during a meeting of the term why would not almost the uniform definition of flop absorbant be sufficient or at least in the absence of any otherwise it's well your honor i would i would start by pointing out that it's the plain an ordinary meaning in the context of the invention as would be understand by one skilled in the art and even though contemporary dictionaries the majority of them even though if they happen to reference absorbant materials that doesn't mean that's how somebody skilled in this art would read this application but it's a question is all of the dictionaries right it's not just some of your honor i think at least one of them didn't refer to the word absorbent in the definition itself the one that referred to cotton or cause wrapped around the end of a slender wooden stick and of course we know from dr donna field reference to a fairly old article that there is such a thing as not absorbing cotton and that's why there was such a thing as a non absorbent cotton swab at least a one hundred years ago but your honor regardless of whether  judge i was going to say were garlands of whatever those dictionary say we still do have to start with the intrinsic evidence itself and the application itself which refers to any material say for contacting the eye without harming the eye and then if the question is the application of liquid to the eye for the purpose of helping out the process which otherwise is not claimed or described as using a liquid at all either in delivery or in absorption ok but when you just stick isn't that a reference to similar materials that have the characteristics of small chorus and resilient to reasons your honor st it's still only in the context of that embodiment and it is not in the broader context of the entire application but more importantly that's not all that sentence says it says similar materials capable of removing debris from on the i without harming the eye are readily apparent and may also be used so that bookend at the end of that discussion referring to similar materials directly speaks to what the similarity is capability of removing debris from the eye without harming the eye but even if you were to read all of that let me interrupt you just the year answer can be more full if you look at the sentence that you repeat it please point to appropriately which is at the bottom of column three that says manufacture of any material suitable for contact me i without harming me what is the difference between that sentence and the one that judge dyke just referenced in column four why do you need that sentence in column four if the sentence in column three means what you say it  my question the tooth does seem quite similar right they do seem similar your honor and i would say that the primary definition or the language that is most important is the language that refers to the type of material which is exactly contrary to how the district court construed the term as to the nd part of your question about the nd sentence i would say that nd sentence comes in the context of discussing the sponge and body m and clarifies that that embodiment isn't limited in the entire specification to a sponge and we also know that because there's a did dependent claim that refers to sponge but if we just step back and then ask the question that i think is sort of lurking behind all of this which is well it does a swab and doesn't swab mean absorbent we can look right to the intrinsic reference evidence i'm sorry and confirm that the answer that question is no it doesn't mean that we know that because prior art that was directly relevant to i care referred to non absorbent silicone swabs well before i get freeman reference can we still stay at the language in column three income for the the author of this part of the specification is acknowledging that the discussion is now shifting to an embodiment and is talking about something narrower than what was just discussed so the specification says the sponge can be made out of any material that's safe to contact the eye without harming the eye and then it transitions over to a narrower embodiment and it signals that transition with the word however so we would read this entire discussion as entirely consistent with the notion consistent with the intrinsic evidence that a swab need not be absorbent but that it can be and that a sponge is an embodiment within the scope of this patent that is an absorbent swab  the embodiment of figure one which is what this part of the specification is talking about that's the very last line on call three however as shown in the embodiment on figure one the rest of that paragraph we would maintain is directed to the in figure one and i can't disagree that the embodiment in figure one includes a sponge but that's not the question and the question is not whether or not just can i just interrupt you but i'm trying to follow your reasoning  not it is your honor and and i mean essentially there are there are types of swabs that you could use for certain things that you couldn't use in the office so why use a broad definition still in the context of the swan and let me get to my real point here i think we can i mean i think i heard you agree that even if the general common plain and ordinary meaning of is absorbant you're saying in this art field in this field of endeavor skilled artists and would know that's what can be read is that correct it's correct in this field of endeavor and i don't know that it's not correct in other fields of endeavor as well it well you know that ok ok let me just ask  applied during prosecution that had a silicone heat sink that the examiner used to meet the swab limitation so the examiner read swab on something that was silicone that touched just in front of the eyelid and then we have more than that was the examiner office was because the examiner well because the examiner who was reading the specification and interpreted the claims in light of the specification and see examiners job to apply the claim to the prior art as the invention or what's to be used in your method here it carries certain implications and if you meant something other than the swab you could have used something else like it appears they did and what did you say crinan and so it seems to me that it's an impactful choice when you use the word swap and if you're going to get around playing an ordinary meaning that swab is being absorbent then you have to have pretty clear lexicography in the specification and i just don't see that here i honor thank you your honor my response to that is that even though a lay person might come to this specification with an understanding of what the terms twat means to them the intrinsic evidence in this case is clear that that is not what a person skilled in this art would come to the specification with so when the author of this document when dr reiner soon disclosed his invention he wasn't a lay person who buys q tip brand swabs at c v s he was a doctor who treats blepharitis with swabs ordered from a medical supply catalog the the record in this case demonstrates that both experts most experts agreed that not all swabs are absorbent we have screenshots from a medical supply catalogs that refer to non absorbent swabs we have scription of the materials used to make the swabs from the medical supply catalogs that refer to non absorbent swabs chest because a layperson would think swab means a cotton q tip it does not mean that someone skilled in this art and particularly a medical doctor who treats eyes would instruction manuals and other things that define a flop is including not not absolutely bent is that your argument our argument your honor is that the district court didn't even need to get there because there were references in this case and i would point to the freeman reference and we've put an image of that reference in our great brief refers to elements as swabs says that they can may be made of anonymous or bent material and uses them to contact  how does the fact that there may be isolated references such as freeman use it differently helpful to for two reasons your honor it's helpful because it's intrinsic evidence and so it's more important than the extrinsic evidence and it's also helpful your honor because if you consider what this construction is doing this construction is limiting all swabs to absorbent swabs and the intrinsic evidence not the extrinsic evidence the intrinsic evidence demonstrates that is not the case and the extrinsic evidence reman intrinsic evidence oh because your honor it was cited it's cited in the patent was cited in the prosecution history it is from the prosecution history that makes it intrinsic evidence but your honor even if we then turn to the extrinsic evidence if we start with the experts who were talking about swabs in their field they admitted both experts admitted that non absorbent swabs exist and the medical supply catalogs used to order swabs also demonstrate that non absorbent swabs exist it's only when you get to the dictionary that you find suggestions that swabs in general require absorbency and  even if every dictionary says absorbency st swabs generally we still have to put a primary absences on the intrinsic evidence and the extrinsic evidence related to the specification and all of that lines up in the same direction that even if swabs are primarily usually normally absorbent they are not all absorbent there are no on absorbent swabs and your honor that is not disputed and for that reason we don't say the district court erred thank you thank you we'll hear from the at the site now eleven swallow it actually is described as a medical grade so on and so i think that there there are ten to differentiate it is incorrect because there are other sponges given with incessant cation that can satisfy that in still be absorbent ok i understand that let me ask you about the key sentence relied on by your friends on the other side which is a column three why is that not sufficiently broad and clear to discount the fact that the embodiment is the only thing we're talking about and to support mr kelly's argument that any material suitable for contacting the eye is covered under the definition of fraud in this cont gauze then it becomes absorbent three has to be read in isolation from the rest of the material at the top of column for no i'm not been talking about satisfy not harming the eye that material also has to be absorbed because it has to be subsumed within the definition of a song and they didn't make an exception and say this is broader then it's lauded this is not an absorbent substance they not absorb and i thought the district court discounted the experts because they said different things and so we just said it's a draw i'm not going to consider it what  the posed of hydro filler hydrophobic materials such as dacron or polyester can actually be absorbent and when you look at the marketing disclosure it's talking about the release of bacteria and not the absorption of testimony he seems in his deposition testimony to potentially have to have contradicted his expert declaration or the idea that is actually the same type of area seems fairly  because his reference to the dac on fob referred to the description of the material making up the swab as the thread and not the swab itself and once it has really not countered that with anything substantial used they are directly showing that they need to be absorbed materials and then when we turn to the dictionary definitions there these are not just broad dictionary definitions  declaration that the instead meant definition was from the most prominent medical dictionary space and then also there is another definition that will part of georgia see it from the depiction area of and i think that i will pass my time there not a question thank you thank you mr keller thank you chief judge post i'd like to begin by direct directly addressing the distinction between himes deposition and his and his and his expert report actually his expert declaration so they are consistent he's saying that the deposition that he is that not all swabs are absorbant and if you look to his expert is that when he reads the seven hundred and eighteen patent he doesn't think that what happens in the seven hundred and eight dollars patent could be done with anything other than absorbent swamps and you see this in paragraph sixty eight dollars he says a person of ordinary skill in the art would not have understood that only absorbent swabs may absorb the liquid solution that aids in the removing of the debris so even my boat's witness is not saying that swab is absorbent because that's what yes he he referred to the general definition of the word swab but what's important is the definition of the word swab the in this field haim says it doesn't have to be absorbent we have intrinsic evidence that shows it's not absorbent and when it comes to the function of this invention the function is is a physical state you know impacting of things on the i the swab rotates it vibrates it reciprocates so that it can break scrub buff its movement is at a speed sufficient to remove debris this is this is not like debris floating in the eye this is debris that is a fix to the eyelid margin that homecare cannot remove the invention here is something that impacts that degree that debris to kind of scrub it off the eyelid that's not an absorbency issue that's an impact issue that's a scrubbing issue nothing about the seven