this case concerns primarily construction of the means plus functioning gates remains it is or belief that once that construction is corrected that then the technical prong issue will go in our favor our product is covered by that and that we will be entitled to it you know exclusion order based upon the  honour's would have the authority to do that in that the findings of fact in the comparison of of the device of the of your device with the claims is a record and the only question is whether or star what are the first and second positions in the claim you're going to run or if we look at figures in the pattern just tell me what the first and second positions are is when the cable is gripped between the conductor body and the fast remember which is caused by the movement forward of the faster member with the cable into the connector body until gripping occur so it's not there when the one fifty beads in the in th position to be the preferred in body meant that includes the locking future provided by the second shoulder fifty b it instead defines it as when the cable is gripped are there may be a little confusion here let me see if i understand what you're saying if i understood the two positions i thought the positions were first position as you described it as a second position is the collapsed position where it so happens at least in the in the diagrams and in depended claim for that at that second position fifty beat dollars snap into the notch correct now this is setting aside the question of whether fifty b is essential to be the gauge means and so forth sought but if you ask the question of what the second means i of the second position is the second position is the position which if you have the shoulder fifty be that shoulder snaps and into the not correct i think that is correct your honor that locking feature of the preferred embodiment occurs at the same time and at that time the second showed fifty b is indeed in the group and you are in the second position the second position is generically placed in the angelus and then it indicates that it will be between the locking member and the connector body and then as it moves forward the second position is chewed according to claim want at the time illustrates the second position for the three components and that that figure would read on claim one whether it had fifty b or if you took a file and you filed down the fifty b shoulder you would still be in second position and you would still that the claim one would still lead on that structure is that correct that is corr at what is shown in figure five at that location but gripping is also going to be a cheat achieved at any number of positions before that it's achieved in other words this is a compression the compression device works by compressing the cable between two elements so there is not a precise and wonderful point in time when gripping achieves or not that's why the claim bro makes it abundantly clear in the routine matters that it is not appropriate to limit a claim to the preferred in body image unless that claim specifically is directed at for lima specifically the function second we have to determine the corresponding structure now if we determine the function you look at these claims the claim one there were some rejections it claimed were then amend and the operation grammar etc that was used in claim one is to require that the engagement means co actor one to inseparably couple and two to accommodate limited access your movement the patent the use that criteria to define the functions and you will see in the prosecution history as we explain what was added and you will see if you look at claims two and four that was used to get when they wanted to use a function to add a function claim  says where in the engagement means additionally co ax to your oblique resist represent to resist claim for where the engagement means additionally co ax to fix so the patent owner has used the grammar of saying call x to blank your function one first function couple two h to accommodate and then with respect to the dependent claims which are directed to the preferred environment it uses additionally call x to resist or to fix so the functions are defined by those words to ver what the commission has done has taken an adjective limited and made it into a function they've said that it has to limit the movement backward out of the second position in doing so there is no support whatsoever for that function in the specification if one the specification if one looks at the drawings then one concludes that there is no teaching whatsoever of any structure that will resist forward movement but it seems to me the problem that that this patent presents for us in connection with the means is that it defines engagement means it least arguably in a in a somewhat fluid matter because it says at one point the engagement means preferably comprises first and second actually supported shoulders eight fifty eight fifty be your contention as well but that's a preferred of body meant that is not structure which is necessary state during storage handling installation etc in all cases preferably both in all cases fifty eg similarly if we look at the specification it explains in the prior art that the problem with the earlier compression type cables was that the components would disassemble that connector body and faster memory separate or that they would fifty b as opposed to some other mechanism not that it means preferably includes fifty and preferably fifty p it's not a word of so the natural reading is the second of those which is what you're are you understand what i'm specification in its entirety is a fair reading but it's saying fifty and you can include fifty b that is consistent with adding having additional dependent claims that include those additional functions that are required fifty b and then with respect to the corresponding structure all to met lee the commission's construction requires that the second element stop forward movement and yet fifty b stops forward movement yet fifty b is not disclosed to stop when removing its express lead disclosed to permit forward movement it has an inclined front face to permit that work and we co submit your honor that in fact if you made that in a different hypothetical way as the commission has which is not proper it has to relate to the real structure and that structure has to be linked to function but fifty believe instead permits forward movement and it has to permit forward movement and if it doesn't fifty b it will never get into groove fifty two because it will be stopped when it meets so what what does it what it does your honor is this is a compression device of what you push the in you are compressing the cable that compression as our commercial body image shows actually it often is enough to hold it there that afternoon to may please the core here's why we need the second shoulder fifty reason we need that is because the second position in the claim is not defined without it if you look through the specification specification synonymously second position second clamp position and final claim position they're all the same thing and so p p c suggested a moment ago that the clamping is actually a gradual operation so as you are sliding the locking member into the connector body there's more and more compression being placed on it such that the clamping actually occurs at more than one location that can't be a second position we're not talking about continue here we're talking about one position and as the claims made clear they refer bad back to said second position so we need the second show of the only thing the two five seven pat tells us about the second this is position the second clamp position the final clamp position is that the second shoulder fifty b is in that group that's all we know because we know that the clamping occurs gradually and th position that's a continued well there is a position when you reach the end of the road here it looks to me like it's looking figures as you can only go so far with the structure right right and that's what i understand if you look at it do we agree that figure five is the second position is that we do have figure one is the first position yes but when you get to figure five you're not going more towards the left then than you are right there that's the end of the road right we agree and it seems to me that it's hard to say correct me if this is wrong but it's hard to say that fifty b has any role to play in accommodating the limited axial movement of the locking member between the first and second positions because that fifty b isn't even engaged in til you're already at the end of the trail and do it snaps into position when you're at the second position so how does that a cut fifty be accommodate the movement between the first and second position while you're on which is what the  is pretty limited on this point the specification doesn't expressly disclose what limits or movement whether it's the o ring whether it's the second shoulder but it's our view that it's not so important as to what does the active limiting as it is that we have full i'm i'm addressing a slightly different point and i think you can come back to that but let me let me just get your views on this but looking at the language and i'm really at at and claim one time it lines ten through about thirteen that the talks about the engagement means and then some of the functions and says that it is the function is to accommodate limited actual movement of said locking member relative to said connecting connector body between the first position second position that's sort of the core of what the claim describes the engagement means it's doing and i don't see why in the context of this claim at least i don't see why fifty b has a role in that function fifty b may or may not have a role in accommodating but the but the entire function includes limited between set first position and the second position and in order to know what this limited means we need to know where point b this and other words are for describing movement between accommodating movement between point a and point b we need to know precisely where point b is but we do point b is it at  point that the device has reached the shoulder that it reaches in figure five and that's that's the second position that position would be the same whether you filed off if not now it might have some room to put it back in the other position in the other direction if you didn't have the extra lock on fifty but but if that's the second position we know it we it's our view that the second position is the second position and the only thing we know for sure about that is that fifty being gauges the groove the as i mentioned a moment ago the clamping occurs gradually so the clamping can't define the second position because we wouldn't have a position well but the shoulder forty six is what defines the second position because things can't go any farther and shoulder forty cents well that's that's what the figure appears to show but really the split specification doesn't say any of the ok the specification is very limited it doesn't say that you know it stops at the end of the connector body and so so that's kind of the specification is limited and the commission read the specification final plan position as being the second position and i don't think the specifications  any other interpretation of that second position the other thing understand that argument i am troubled by the argument that limited means the limited limit war movement as well as to accommodate that seems to me of that part of it seems to me perhaps so the commission's analysis and its opinion really discusses three main points the first point being that you need a second position this isn't that what we've been talking about for a few minutes now and that position must include the second shoulder in the group fifty two and in fact the specification does define the second position as when that happens that the second point that the commission looked at  was and the commission found that the second shoulder does have something to do with limiting and put the commission what forward or backward forward at end but the commission didn't need to say that the commission could have could have just said look we need a we need a limit  the physics of it i don't see limits forward motion motion i can see how it live it's backward so the commissioner of the specification of all the finale language to say this thing doesn't go anywhere and the only thing that we know for sure is that that second childer is in the so you know the specification could support a number of different readings it's our view that the commission read it reasonably but but the more important point is that active limiting is not part of the specification are executing part of the claim so all we need is that all we need the shoulder for at this point is that we need a second position and that's essentially what we're we're saying that's the more important part in order to have limited movement you need a limit and so we know the limit to be the second p that somehow that limits or the commission did draw that conclusion based on on its view that it doesn't move forward at all after i don't feel like two aside from the second position point that we've been talking about and also the point you're entres i'd also like to point out that this case is unusual in terms of means function because typically these panties reserve the magic language means for the claims the patentee told us in the claim and he could've he could have let the description speak for itself or he could have opted not to use means plus function language altogether we think that this case is is almost forced with the the no most case was directed to a means for generating an ultrasound image in which the patentee only disclosed a single embodiment and the court required a fixation device to be part of that means for generating an ultrasound because every single depiction in description included this fixation and what it did it this actually ended up rendering one of the two panic claims directed to a  you know means plus function application trumped the claim differentiation argument which p p c now makes aside from that this case is also similar no must because no most of the patent he again said by means for generating an ultrasound image includes this or may include this that's that's what makes these two cases unusual and this should be controlled by no means now unless support has any further questions i'll just go with my commission today that active limitation is not part of the claim or is not necessarily part of the climb until today it has been absolutely necessary of the central function that they've added and i'm glad to hear that it's not part of the claim now to the commission has expressed the view to the court that the second position is defined as the preferred body meant when the shoulder fifty b is that's the clamping or the gripping that's required by climbing on it at column for later in line sixty prefers that final locking in the clamp position occurs as directed to the locking feature it then again since clamp position it doesn't say when it's locked that's in the second position of the claim and similarly if column five lines forty four it says the shoulder of fifty b co ax with a group to retain the locking member in its final plant position it used clamps position fine it doesn't say second position means when fifty b is in the group  then they explained that today that the second shoulder may or may not comedy well if it doesn't accommodate that it is not being described as being a linked associated structure to the climb element nor is it necessary to achieve anything because they've expressed it as achieving limited movement otherwise it's not achieving anything the accommodation is to fifty and fifty be as the engagement means what engages it's described in the plains is done by fifty feet at all i thought your theory was that it really isn't doing any engaging in of the engagement i thought construction which says that it can never be part of the engagement means seems to be difficult i would agree with you one hundred percent it clearly if i'm going to stand in front of this court and say fifty b is  number and defendant claims two and four and i am in front of this court saying that then clearly fifty people can be part of the engagement but it does not have to be part of the broad engagement means of claim one and it can't be an alternate means engagement means either can include fifty alone which meets all of the functional limitations in the claim one or it can be fifty eight and fifty b which is the preferred embodiment which includes the locking feature which doesn't do anything as to limiting forward movement it only retains it in a locked position and does not