families the patents all use the word needle protected advice in these sort of claims and the patents generally relate to catherine through devices for inserting a catheter and id catheter into the date of a patient and what was the knowledge of the time was when you would draw the needle from the patient after insertion the needle tip could be problematic to the health care workers so they developed what's called a needle protective device which was known to persons of skill in the art of the time which would protect the tip of the needle from needle stick injuries and then also a novel valve which would prevent blood from flowing out of the catheter after the needle was withdrawn and we contend that needle protection device was incorrectly construes one twelve six for several reasons first the limitation doesn't include the word means and as this court is well aware well your honor and then the question is does the term needle protective to know sufficient structure to those killed in the art and and so as i understand what happened here is defined in the prosecution history and so then everyone had to resort to extremes of evidence to try to figure out whether this term needle protective device is a term of art established term of  art in a field that skilled artisans would look at and understand in their mind that that there is some class of structures that relate to this term needle protected your honor agree with you in part and respectfully disagree part and of evidence was also a little different before the board compared to what judge enters at here well i understand what happened below there was no argument from your side that there are any if that claim language  helps define what is meant by needle protective device so let me answer your question and it's several parts of the answer so if i may the evidence was the same another words the intrinsic evidence was the same mr mice testified our expert side agreed that there wasn't anything in the claim of the text of the claims themselves that help support the idea what it must mean to be a need to protect him so this is going to sound sort of like a weird argument but the answer your questions we didn't agree that there was not  but if i may during questioning on oral argument so in the briefing itself we acknowledged that we were not making that argument the recession struck us ronnie claim no question about that but then upon questioning from the judge during or oral arguments we've we did in fact argue that there was structure so the judge should i not get to that in just a moment and specifically during oral argument upon question from the terms for structural and he went on at appendix three twenty five lines ten through twenty two where he responded to the judge quote so the issue was simply wrong or does the term needle protective device refer to structure or to one school in new york it does in this is not means plus function limitation so here's claim eleven here's a representative claim from the where service pet that's one of the two families at issue and we highlighted towards the bottom of the slide the term needle protector device the claims function you're limited to the embodiments and equivalence there of that are described in the specification there is nothing in the file history is just a shame correctly pointed out that address the meaning of needle productive place and so there would be no limitation there's no protective devices broadly as the p t had it for example you know the p t construed to be a device configured to prevent unintended needle sticks which is precisely what we contended to the district court the term should mean which would have a broader meaning with you know we transcript where you're pointing and you now doing your brief a little bit to other claim elements with structural features as supporting the notion that this language you know protective device is  pull it and the two different things in the spec that that other way which of the claims wouldn't make sense but if it does make sense if all that other structural language makes sense even with the butterfly clip the other th device is itself a structure you know i understand so is there something in these other structures in the other claim language that sort of incompatible with the early spring clip and  meaning of the term as we could propose and i'll give you examples of what is that plain ordinary meaning that you propose a lot of sure it's a device configured to prevent unintended needle sticks ok so that covers anything that prevents needle sticks so so great question around and that was something that we did pointed out they argued in their briefs that for example rubber gloves would suffice under that definition but the answer is it doesn't because you have to look at the term context and so when you look at the term in context you know that it has all these other structural limitations or any any component attached to the catheters thanking me for event needle   you know nor there is still an artist and would imagine a certain set of structures and components that can sure that can be a needle protective device or lead where the looking at it from a different angle which is respectfully to page sixty nine of the and it's that there was a quote wealth of prior art teaching almost limitless configurations for protecting healthcare workers from accidental needle sticks in the list of the types including caps needle guards and of just call them safety mechanisms and it can eric way that could protect against needle sticks why do we have to read or find that judge anders clearly erred in concluding that needle establish that the meaning of that phrase is something other than what the than the meaning of a phrase a device for protecting against us that is if you have a patent and you title it you don't protect it it seems to me you haven't yet told the world that it is a name of a thing as opposed to a name of a class defined class of devices that serve the function will of course have members sure i think this is exemplary that there was a term that was known needle protected by said your expert by the way ever say you're a bunch of things that serve the function that are you know protect by says and here are a bunch of things or at least one thing that serves the function that isn't the needle if you don't do that then it seems to me the phrase why should have the same construction of across both families and as corners and where even if a later in time reference they can be relied upon to show what the state of the art was earlier in time and that's what we contend the british journal nurse journal of nursing oracle daws these would be the earlier family and the reason why that article we believe is helpful is because it specifically references a definition for needle protected advice in it that defines needle protective device is any product that can be used to protect health care workers from accidental needle stick or sharps injuries other errors but in terms of the weight of that evidence for the proposition that i think you have to establish it seems to me when it says and n p r is defined as it is not necessarily saying the world of the relevant technology here understands the word to mean this it could just as easily and maybe even slightly more naturally be understood to be kind of acknowledging this is not a term the readership knows and we're now going to write something and as a shorthand we are going to define this term which it seems to me doesn't tell you factual finding about usage is clearly erroneous so a little bit of evidence would seem to me that well your honor we suggest we supplied evidence both in the form of the expert declarations of course it doesn't matter what i think it matters what a language and i still have time i do want to point out that there were at least two clearly erroneous findings that we believe just record made and one was the district or concluded that the prior art and oracles referenced by mr weiss relied upon by not ask of this hard to make we think those requests for new factual findings waived but even if the court reconsider them the record evidence and support those findings certainly doesn't support the crawdad incredibly expansive functional meaning braun wants to put forward and then having the court what's important for the district courts conclusion is the context of what the court was looking at in the record so the record was as i think my friend on the other side acknowledge voluminous there was two rounds of summary judgment briefing three expert declarations for her argument the evidence before the court was that people in the industry in the field have been discussing mechanisms for needle stick prevention since the early one nine hundred eighty s so there was a body of forty years of literature that had been developed and presumably broad canvas that literature as we did we and out of that entire literature of the parties put before the district court seventy references connection with all of the claim destruction dispute or the court with respect to the needle protective device limitations specifically ron put forward before the court eight references of the all the forty years of literature of the seventy references before there's a court only true references used the term at all and both of those references use the term inconsistent with each other and with the claims in light of the fact that there were no dictionaries true says textbooks in light of fact it is nothing in transit record this court cannot be found to have committed clear error in weighing those two references inside and they were not probative on the core issue of whether the term needle advice at sheaves status as a noun and safety mechanisms thanked him to help protect against needle sticks and i'm going to coin a term and i call it a needle protective device and by pointing that term i referencing all known ways of protecting against needle sticks there could be a spring the is that shoots out and covers the end point of the needle there could be automatic retracting schemes to withdraw the needle back into the housing there can be some other things to some elements of some kind and when i say need a protective device i'm referring to all and then in the claim i go ahead and say  assembly having this that a valve and a needle protective device with that kind of claim turn in the context of that specification cover any and all correspond to the now point term needle protected device and if the disclosure in the specification corresponded to and had the requisite nexus to the coin term then wrong would be able to establish that th device limitation covered the corresponding structures plus equivalence under and a litter infringement theory but again the disclosure focus on disclosure and here the disclosure is completely different because that's not the invention so the invention here is the combination of the specific spring clip with their specific value that's why the specification in this case doesn't talk about all the other them my colleague referred to the five a week patten and on the five way panel again context is incredibly important on the five again as i mentioned they put eight references before this report on rebuttal decoration he says i found a patent having the title needle protective device that's it he doesn't say anything else and that's set to sixty four to eighty eight to sixty four two he doesn't say anything else about the five other than he found a pattern that has a title on that and then at the argument there was nearly four lines of oral argument a three three three about the five way patent which was a throw away to the preceding twenty five minutes of discussion on the new protected device limitation much of which focused on the version of snark the discourse on that record was not obligated to discuss it it certainly considered it and injected it in an ad and appropriately rejected it but i think the fa authoritative for multiple reasons for for the fact that states a definition that's coing for that particular article alone does not prove or to be standing established meaning in the art and of course it's inconsistent with the claim and the it's inconsistent because the definition in the british nursing article refers to products so the british nursing article says a n p t is a product that protects healthcare workers and then it goes on to in the claim but it also goes to show that there was no common understanding ourselves meaning that it was a coin term in both instances with respect to the needle of our arguments i won't dress them at l really ron has to jump through incredible hurdles to get to the new garden for many of his briefs not only the waiver issues but even if we get past the waiver issues it's incredible to magine that the district court clearly erred on this record when the term you guard is not in the claim at all the only expert testimony on the term needle guard is from b d s expert and bts expert testified that the term needle guard is has idiosyncratic functional and goin g and then there's of course independent claims that cast doubt on whether the term neil guardian protected vice have the same meaning and we contend also then that the record evidence of the book for you is internally inconsistent  s and i'll give you as an example claim one of the two for nine which is that and it's one of many just as my way of example and it minutely each of the fourteen claims that are presently asserted that include the needle protective device limitation all have different types of the needle tip in a protective position so it's not the type of usage we typically and of course i'm sure my counterpart and i looked at as many cases as we could find from this core and have interpreted things was function limitations and typically when you see claims and limitations in those claims that he believes have structural limitations but other than that i agree with you claim twenty five of the seven six two bend which is at appendix ninety four it's a dependent claimant reads the method of claim eighteen where in the needle protective device comprises a resilient portion made from a metallic material for moving the needle protective device in a ready position to protective position so again you see structure it's a different structure than the previous one and i would direct the court and in that case which was six forty nine f fifty and thirteen fifty nine the court interpreted the meaning of the phrase modernizing device and it found that it was not subject to one's well six because the claims delineate the components