anticipation and in doing that by saying that the claim language has a point meaning which can be determined by the jury because is it not the case that the same thing that you are accusing of in  let's slow down there for a second in your marketing brief when it came down to the word different i believe at a one zero one three you promoted the idea that plain meaning the jury will let the jury decide what the word defect means based on ordinary understanding is of the word different but now today you want for invalidity purposes obviously you're telling us that different has to be understood with respect to one of our areas the only art and that it had some kind of technical understanding and the wrench art that it would take into account that i guess what you would call non negligible defenses based on manufacturing imperfections would not count for different do you understand why from my vantage point it sounds like your to section of the word different changed from judge to understand were different to not need any construction and let the jury decide based on plain ordinary meaning without any context to how one of ordinary skill in the art in the ranch art would and this can be found it multiple locations i argued in the sense that a thirteen fifty five looking at a one zero one three this is a straightforward word so commonly understood in the english language that it reveals how unnecessary it is for the standards that are related to manufacturing tolerances for example if you take a wrench the opening of the wrench in this was cited as one thing manufacturing tolerances for every manufacturing tolerances different different by product so for example if you ever get  the manufacturer generally manufacturing tolerances are the same but generally i mean but what's your argument is it a general standard applicable to all manufacturers or is it depend on the tolerances specified by the particular manufactur the manufacturing tolerance thing's a general standard applicable to all products of the same type and without regard to which customer it is or which manufacturer it in the if we're talking about tilting the differences which is an issue here then yes there would be an understanding by person wondering still in the piece what evidence did you present as to what the tolerances are your honor i presented a number of different  particular evidence that first as we showed the the opinions of both of the experts in this case both mr buckley and mr olson  back to the mark when hearing or we are we sometimes this is later martin hearing ok now back to the marksman here and you didn't present any evidence to the argument that you're about to make you are relying on  to what the palm says were we presented that evidence at the claim construction hearing or on what was the evidence about what the policy in your honor the the evidence was that it was at least from our absolute perfection everybody agrees that you're correct your honor that there is no if you look at a subatomic level there may or may not be but we don't know where one thousandth of a degree is getting pretty to one hundred three millimeter our experts didn't even use a microscope they used imaging that they measured with with a laser image and so wasn't that you have to look at my microscopes in fact when they showed him a wrench mr buckley at deposition he was able testing methodology and also show that it wasn't due to a manufacturing issue that could have been due to wear and tear we don't know the chain of custody of these wrenches that they identified and these wrenches some of them they showed were six years old and showed them to get scratches and used and caring and someone could have been bent they don't know where these wrenches even came from a lot of them have been sitting around some for persons garage had been used for decades on car repair and so we don't know whether that was accidentally created and that's where you tend that all wrenches were within a thousandth of a degree that they have identified i am saying that they have not shown any wrenches in this case and there's only two patented issue on appeal here that varied by more than a thousandth of a degree they have the patents that they showed were within manufacturing tolerances that's their testimony that's that's our testimony anything that's below your honour's new police work the district court's decision on invalidity based on anticipation should be affirmed because the record was undisputed factually that you cues products were practicing the prior art they were using the well known in the statement of uncontroverted fact along with the fact witness testimony that we presented to the court that the natural result of what i just want to see where mr bu answers would result in having these inherent differences place and likewise that seventeen zero four and seven you know five he gave some specifics about how many thousands of an inch of material with be removed from the head of the ranch and on appointing to the word different render the pen allowable over the over the prior art well there were a number of changes to the scope of the claim your honor and usually as claimed the claims were directed  immediately after cuz the disclosure in the past in the so we have a column and a half of disclosure not a single dimension not a single reference to a manufacturing tolerance and in fact there is no standard manufacturing why aren't you happy with their claim construction i agree or honor and one of the point i wanted to make today with that their dispute about the claim construction really won't change the outcome here because of their own expert relied on  zero degree tolerance in the difference until pangle as his as his foundation for his infringement opinion even if manufacturing tolerances were somehow taken into account in the claim destruction and here of a really firm articulation of how that should be done because at the at the district court the argument was any any lay person would understand the meaning of different and the th  modifications of the claim construction as the patent owner must read the claim to find infringement that seems standard when applied on the anticipation side will result in anticipation as a matter of law because it again is undisputed that and be refused products have the same variations resulting from the same hymn polishing process as was in here and all that why do it if in order to overcome the were not just adding the limitation difference to overcome the prior art they removed another limitation about a reference to a common point and they really changed the nature of the feature that they were trying examiners amendment that resulted in this additional language what the examiner was trying to help the applicant do i believe from iowa st what to focus the claim on the idea that each draw is at a different angle from the other draw and that was something that wasn't very apparent wasn't very clear from the claims as originally written referring to a common point but no point in the file history is there any indication that there is this standard hand polishing manufacturing technique that's been widely used for decades that results in these thousands of any huge variation  and it seems like one could argue that whatever for intially or disclosing whatever wrench they sell based on that disclosure has been disclaimed from the scope  that if we look at this court's smith kline decision that the court dealt with a very similar issue of as a policy matter shouldn't we try to construe the claim you know way so that we do not and smear the prior art and that's the way the district court in the smith kline case where the service lines an argument for saying based on the prosecution history that different must mean differences that exceed what exists in the prior art which suggests that their claim construction that is the one thousand degree is not the correct claim construction as it would claim construction would have to be things that would eliminate the prior and applying the claims as broadly as the plaintiff did in order to find infringement by use wrenches which had a suit and which were essentially the schuler and four inches the court seemed to the conclusion that there was problem that i see for the other side is that it's not clear from the prosecution history that anybody examiner in the apt and had in mind the possibility that there would be some naturally occurring differences in the in th brought up the notion of manufacturing tolerances and how one worker is still in the arts in reading these kinds of claims and understanding this industry would know that they're going to have a little bit a play in the joints in terms of relative prior art and the patent ensuite are not directed to the manufacturing that and i and i don't see how the examiner could have been contemplating that differences in an angle like this which are on the order of  really made this conscious decision about the issue with respect to manufacturing tolerances in the claim construction process volo the patent owner was consistent in saying don't rely on extr evidence we went through the pat local process and two rounds of briefing in a joint claim construction statement they rely solely on intrinsic evidence and they say any lay person would be able to appreciate this  meaning of difference when we get to the market hearing at no point is there an effort to make over record the the expert testimony expert declarations expert reports were in connection with infringe they were not submitted to the district court for with the arguments we're hearing today making progress for two or mr davis did mention at the transcript this issue of he thought that the lines of judge i comment we want the same construction for both infringement and validity and we are very concerned that what the plaintiff will depend on or rather was trying to do was to leave the  term different very very wide open and allow them to use the classic new of the black situation and argue one way for infringement and then in front of the jury to then argue that in fact  submission correct your honor there was never a submission by either party saying this is the these experts have given a few new and this is the extent of evidence that should be considered because a claim construction briefing in exchange at all happened quite some time ago no efforts to ask to supplement the record or to modify the positions that either party had taken in connection with the claim construction process  we asked for not identical from the very outset and the band owner asked for no construction from the very outset and given those choices we think that this report may make the correct choice and we don't again we don't think that the ultimately the expert opinions would have made a difference the reason being that when the experts looked for the tolerance that would have governed th both came away concluding that the patent was silent on the on the tolerances and that there were no standard applying to this hand polishing process this was not something that  based on a on a particular industry standard and let me just point to the record there was testimony by two different witnesses to that to that point that there is no general industry standard on this on this and polishing process because that's i think really that really ultimately resolve the issue mr olson our expert at a sixteen sixty eight that it's just a visual inspection if you can polish it you need to take a look at a visually there's no you know number of microns if you're measuring like what mr moore our vice president of engineering at at sixteen eighty six eighty seven said same thing this is basically it's literally an operator holding the ranch pressing it up against us anything abrasive device and there are naturally differences depending honor the problem with not identical is it means differences below a manufacturing tolerance to the subatomic level we have claimed consistently that what's your contention is that it should be a thousandth of an inch no it's within the manufacturing tolerance and branches for different different purposes so for if you have a wrench that's used for medical issues versus one that used on race cars those wrenches have different standards there are i mean that's the reason why the claim didn't limit and didn't say manufacturing cars to one without the degree the sports long said you don't have to have mathematical precision in defining these terms and the judge chance point where he says well naturally occurring to factor differences were not contemplated that's not true if you look at the it's the intrinsic record the for reference which they assert as inherently infringing uses the term approximately approximately forty five degrees those are that term approximately mirror at means less than that manufacturing t