curriculum metric analysis blah blah blah and then it goes on and on these legal arguments as m you both please address the question of what to do about this please court there are two main points i would like to make this morning and respect respectfully request of thirty seconds to late enough in the court the first is that the primary error requiring a reversal of the district fourth is its in district court recruited mr alexie from relying on the disk doctrine of equivalence because it incorrectly found that the claims are limited to one specific programming instruction in the g o two instruction and also because of nine existant disclaimer of the g o one instruction trying to my first point in the subject claim language states said movement of said spinning form cutter being a convex pat but that language requires a simple movement of that cutter in a context path in the dispute between the parties and the crux of the court's claim construction here relates to the way movement is understood we believe the term movement in the patent is best described by looking at column two lines forty to the end of that column there are only two instances in the claim language of grounds are in specification where the word movement is you let me let me see if i if i can interrupt for just a minute you're saying it's a understand it that the it's the workpiece coordinate that we should be focusing on not the machine cord correct correct ok now the workpiece as i understand it is affixed to the table that's correct the rotating tape not and therefore if you look at the workpiece coordinate that  view the entire universe as if it's revolving around or moving around the workpiece which stays fixed correct well the workpiece dates fixed in the workpiece squared right just as if you look at the coordinates from the machine you would say the machine stays fixed and then all the parts of it ok so if the workpiece corden is the right way to look at this then the table never moves just as the workpiece never through four and five and help me with the basic care of you if you have a machine coordinate lets say then that basic premises the machine is not moving right motion motion of everything else i'm not sure that's a correct description or i think the to coordinate systems the way that the dimensions are used to tell the cutter where to precisely move are based on where the fixed point is that you're giving the instructions from other words if you're giving it in the machine coordinate system you're telling the the cutter to move at a point that's remote from where the zero point is workpiece but the workpiece doesn't say fix the can translate along the axis of the rotary table which if you'll see from the figures it's not shown as being attached to anything but that means that it was done that way so that  giving the instructions from for the cutter to make a cut ok are located on the workpiece so when you look at the example the example in the pattern in college three the dimensions that are used in that example are in inches in there in the because one there is no discussion anywhere in the pan of a machine coordinate system the fact that the example is giving in the work coordinate system is shown because the dimensions given are could only be relevant there can only be accurate if it's measured from the workpiece you're telling the cutter to move one point seven one two one inches to make you know in making this cut into the into the workp and those dimensions if you were it was in the machine coordinate system would be one point seven one two one inches plus whatever distance it is from the zero point on the machine which would be feet away from the work table because the work table is you know on one of the axes which is translating back and forth along an axis in the cutter is on another arm or spindle which is on another axis and those two i think this is what gave me the most problems in coming to grips with this with this invention we're just understanding how all of these movements could take place and how they were taught by figures one through four and five of the of the patent but they are indeed and it's in remember this we're talking about a method of programming the c n c machine that uses trigonometric function to get to their accurate movements so that once it's programmed in the geo one or geo two programming language those are interpreted by the c n c machine to make the machine move in the way that it needs to move and to make that proper cut that has the convex paths and it's both the you know it's most them the workpiece and the cutter that can be moving and those drawings are not limited to you know notice are not limited to any movement by any one of those parts even though the drop successive drawings to three and four show that the cutter travels through the root section it's not those drives don't tell you whether the cutter is moving whether the workpiece is moving or whether they are both i'll deal with i think a deal with that in that there was no disclaimer i think what the alexy told the panel office was that this case or this you know the human hand could be distinguished based on the fact panels there may have been other distinctions of name but with the whole on a cases i'm talking about so this doesn't make any difference if you have other grounds for distinguishing prior or you're stuck with what you said so you're stuck with what i said here and what you said which you made wasn't a good distinction that doesn't make any difference because the cases say if you listen you're stuck with what you said and what he said seems to be that you're this money i think that that what was said was actually not a disclaimer in and that it was an accurate description of what what tom was typed by the miley alexy patent that it can be used in both g o one and g o two programming don't think there was any clear disclaimer i think in order to have a clear disclaimer you have to recognize that that there isn't a teaching or you don't say that there is not a teaching of that and have some contrary position in you if i may proceed on proceed so i think in addition to the reasons i gave judge rice and earlier reasonable alexy last i believe in summary judgment was because the court limited the interpretation of clay into the machine perspective the machine coordinate system by requiring the form cutter itself to physically move when the claim is not so limited  in either coordinate system into the machine or the or the work or an it system the example given is in the work ordinance system but if the court found only the machine ordinance system has to be used i think that's talking about in my mind looking at the absolute movement of the cutter whether it goes just back and forth straight across and doesn't look at the movement of the cutter and the workpiece combine to make the make the  page thirty one of our brief and plotted on page thirty true and if you look at those plots you'll see that the coordinate system is is fixed on the workpiece because if this machine if this were in the machine for new system of i mentioned earlier it would be substantially further those dimensions would be stanching substantially greater and working on the work ward system so we think that this makes a significant difference in interpretation of the of contract right but the breach of contract is tied up with the shop rights in other words you're saying it leased a contract which in type gave us rights in the certainly closely we clearly maintained a a defense of shopper right ok that defense that's fine but when you abandoned the counterclaim whether it carried with it the shop rights or not you abandoned that right to a separate declaratory judgment in the final judgment on you haven't filed a counterclaim the judgment that you would get would be a judgement merely of not infringement because this is just a defense so our interpretations of it infringed our interpretation of it is the judgment would say we are we don't infringe because we have a shop right and that and certainly from our perspective across a few was appropriate and necessary because this party said if we don't cross appeal were barred from raising those issues so i will say whether it's treated as an affirmative judicial or stop for eight years this case was about specific movement of a form cutter before you get into the specifics of the of the arguments can you help me on the issue that i was discussing with mr shell which is if in my understanding and mr show i think takes issue with my understanding but i want to see if you do too is that from the workpiece perspective that's the view of the world which the work piece is the center of the universe and everything else is moving around as i understand that concept of the workpiece perspective in the machine perspective machine is the center of the universe in different pieces of the machine some point on the machine  fixed and everything else is moving around is that your understanding of what workpiece perspective means such a that in the workpiece perspective the workpiece and the table to which is if it  fixed do not move so no that is not my understanding of their argument no no is that your understanding of what it means to say the workpiece perspective no so in this disclosure the t has a rotary arc that's moving the workpiece affixed to the top of the rotary rotating part of the workpiece is moving relative it's only moving it it seems to me if you're looking at it from the machine perspective it's from the perspective of the workpiece the rest of the universe is moving back and forth as well to do that not true so i think i understand your point so this is the train analogy if i'm sitting on a moving train and i look at another train i can't tell whether i'm moving they're moving or both move here's the point it seems to me if it's true that the workpiece perspective requires that the workpiece and therefore the table to which it isn't fixed are not moving everything else is moving then that's inconsistent it seems to me with the language in the path which says that the table rotates because in the workpiece perspective the table does not rotate is that not true i completely agree with that and i thought you took issue with my characterization of the workpiece perspective a moment ago no i think the way you've explained it now i understand i think their work piece one system reads out movement and simultaneously a number of other limitations from the claim so it really is that the pattern it seems it's written in the machine perspective when be written from the perspective of you or i standing looking at this machine from the tailstock side watching all of the descriptions in this pattern the claims and everything else are totally consistent with that and in fact if you're honest will look at the provisional patent application to which he claims priority he actually tells us that and this is it page eighty three seven six five and this is he's repeating the same text from column four of his pattern where he describe identical to figures two three four and five in the patent we describe one cutting passed for machining the curvature on the hooks foreknown the observer is looking from the tail stock  is written from the perspective of someone sitting on the workpiece is just absolutely not accurate mr alexie tell us exactly where he's describing how he's describing these movements somebody standing looking at this machine from the terrace of socially just the and he makes the point you made very well that if you're sitting on for a day you don't know where the train is moving train b is moving or both or neither the only perspective you happy or able to tell what's moving in and and so on is from the platform which is the machine perspective and these claims require not only movement of true different elements they require a movement of the cutting tool and also movement of the rotary table but they require that movement to be simultaneous the only perspective from which you could detect simultaneous movement is the perspective of standing on the platform so the claims are very clearly directed to the machine we're in that system let me turn to the question of not infringement it seems pretty clear here under the district courts instruction there's no literal infringement it's undisputed that the accused cutters in the genie methods either don't move at all of course one of the interesting points here or move only in a single linear direction if in fact this court affirms i would submit in this was already below there's been a complete failure of proof here on on doctrine was the primary no deal we arguably made in the summ we say news if a court of arms one on the claim destruction issue there can be no infringement as a matter of law that's our fwe make to alternative arguments one is no infringement as a matter of law the other argument is disclosure dedication disclaimer which is the argument that this report went on and consider i don't i don't want to spend a lot of time on this but if there ever were a vision case for for a claim element here there are two separate that's well we might if that were the way our machine operates it's not from a machine perspective where these claims need to be evaluated it's undisputed there are color either is completely stationary or at most d your hand if that results in the convert path that don't you have a problem but he can't result in a convex path because it's a straight line you mean it can't result in a perfect convex path because it's going to be jacket well it's going to be straight other things are moving around right but depending on the perspective looking at it you could have a system in which as it's going to just just like that something else is moving let's say up so that it's actually going like this and making  in the way that the patent is claiming for sure that and that is for sure accurate and it's been disclaimed as the discussion about him and me makes very clear an approximation of a curve it is not covered by these claims  as the district court found and it was disclaimed prosecution on over him and so even if you were to say what a stairstep kind of an approach i'm fundamentally at a step before that which is this is not even an approximation of a con submit under that theory and i'm happy to address the disclaimer point your honor but i think it's absolutely clear in the district court got it spot on here for analysis is excellent on this point and i don't know that i could say it any better so i simply would point to the absolutely spot on about short straight lines and if you compare the short straight lines with what they describe as a different way in the specification of doing it they match up very very nicely so much much needs to be said about that these movement limitations have no meaning in this is a pure claim to programmed instructions of the kind the court has rejected in benson and and cases like that you make the argument in your brief i think that that the shop away that strikes me as as really strange i mean if mr alexie came to g e and said i'll pay you five hundred thousand dollars to waive your shop right are you saying come back later and say oh well i had my fingers crossed not that the company is and able to waive it you know you're not arguing that are you so you know it's a tree we talked about this very issue a few days ago and i make clear that the claims are not limited to either coordinate system we could prevail under either coordinate system if we had to we think it's easier if a court recognizes correctly as we argue in addition point of one two three four as not many numbers of points as he feels is necessary to achieve the accuracy of the cut they need and then each one of those points is programmed into the machine the geo to the end points are programmed into the machine and the off in the ark is program and the machine itself will decide how many points it needs to move the cutter to achieve the accuracy that's called for and so they're both our figure six in our new groove is they start off one starts off with a connected arc the other one starts off with a series of points but the machine off you know these are directions you're giving machine the machine chooses how to move the cut or move the other parts of the machine to achieve that cut in the sample that they give you the exhibit you'll notice that the kind that scurvy is very hard to see but it's on the top surface of  it was invented before this there was no way to do this the whole industry has adopted this mechanism of doing this invention to make these cuts in wrote and wrote or route sections and so if the whole industry is adopted including g e we believe that there's some significant invention in this was made by mr alexis and we would respectfully ask the court to grant us the relief we requested in our including paragraph per the language in the pattern which says that the total table rotates then this would be the table rotating as dictated by the patent rights or not so the workpiece is going back and forth while the cutter is describing th what would result in b s a it wouldn't be a deeper cut i think you know the one thing that i think needs to be remembered and that's the invention really the cutter actually follows the turning the workpiece so it but instead of the two pieces coming toward each other the cutter in the workpiece coming toward each other the workpiece is rotating away from the cutter of the cutter it's following the workpiece and the cut is made by going into one side of the workpiece and coming out the other ok so the and that was sort of what way this is made possible because that's not a usual way that these c machines used to make their part ok but i but i don't see the cutter if it's going straight what then what shape what's the difference in the shape of the cut if the cutter is moving not in a kind that mystery what different cut is made in that situation i would only be guessing your honor i don't have the answer of course the you know i think it's not you know you're not sure that's not what i was saying which is a now i think you remind me i mentioned that chasing movement yet as the reason for doing that was because the cutter can interfere with the interior surfaces that you're cutting so i think if you're going straight in it's going to interfere more so you w