construe the disputed terms of the dictionary based unfortunately for rod rod of light and reference a scattering well out of context and more importantly fail to account for some very important prosecution history that occurred in the very first office action of the first period kates of all three of the patents in this case because i just have one question will make sure i'm understanding a patent drawing correctly you will see is on two of five a page earlier keep going to surly or at the very bottom there is a solid body there and that is the embodiment that ultimately if you look to the patent to figure three is the other two correct correct yes you are but there is a port of concession about that that middle and bottom of that you're talking about that looks like an arch on the concession is that our product fallon the accused products are all essentially identical to that we think that's position absolutely and the reason is because the sum of the disclaimer scoots hollow we believe that's a question that's just a question of law for this court and because of the admission that we are just like that i believe it's in this court's hands to to actually reverse it if the court agrees but also point out that the structure of the huge products are not disputed and they can be seen at penn dix forty three twenty seven also at page twenty of our brief i think it's important to to see that we have a hollow or a shaped lens which corresponds very similar to to the heart shaped environment and the parties agree that this basically identical to the r c if your view that hollowness is the most important issue rather than the shape well let me what's happening here is i think i'd like to take in the position that when they say they're trying to limit the disclaimer and i think we capture a certain embodiments with their arguments but their argument that when you have an outer bands because that solid because the material that goes around the outside even if it's very thin is solid that somehow that's not hollow but we believe that hands all things that go around the outside of something that are waveguides are solid they're not gas and they're not liquid so it's not the point of whether there's a solid outer surface the question about sol is whether the entire waveguide itself is solid and why is that important here on ars but that is important because in the first office action in response to the first rejection the apparent case there was various projections and it was one was that it was exclude it was explained the quote in essential feature of the invention is to is to use this wave guide to take the light and expand it into an oblong pattern something that was not  contained in the district court's constructions but the idea of a long gate in the light using a solid wave was described as being very very important and more importantly well also that statement of course i consistent with the specification where the specification calls this idea of a long getting the light into an oblong shape quote the quintessential feature of the invention which would cause a lot of that is that column six lines fifty two to fifty seven of the specification of the two three eight patent at eight thirty nine hundred so we have in the prosecution history this idea of making an oblong pattern with the weight as being quote essential nt before the patent office was look sladen discloses something it's hollow that doesn't achieve a light scattering it we do real cheap light scattering and in order to diffusers like in slate and you'll see that there's a thin wall in slaving that goes all the way around kind of in a horseshoe shape and that was referred to as having thin walls of course those walls are solid around the outside that's not the point there's always going to be a solid wall on the outside the question is whether the entire internal cabin spilled so that it represents a solid wave but you're not going to know in your view sladen is the key priority representing bishops was mentioned but that doesn't seem to be much discussion in the briefs about the shop there's not a lot and because slade is just so on point i think there are points are made very clear based on slade and it's clear from the prosecution history that those types of any argument that there is support for a holler type of bottom within their pattern i think the parties agree on that but i can't speak for them too so we don't think there's any drawing or description of hollow there was arguably in provisional application but that was not carried forward and why was that not carried forward because the applicant has told us in the specification of the till the application and in the and the prosecution history that it's essential that it be a solid rod but i want to point out it's not just that it has to be a solid rod it also whatever that solid rod is construed to mean and we think this was an important part of the claim construction that was missed that solid rod needs to the definition has to clearly exclude hollow thin walled shapes like sladen and like ours so there should be no ambiguity left of whether it's solid or not that the disclaimer has to be represented accurately in the in the construction now invention they give a very nice explanation about what's essential to it on the earlier page starting at forty four sixty four and sixty five so i think you have to read that whole response to understand the full scope of the disclaimer because then there was a one twelve rejection on this exact term preferential scatter so we'll be out of it xander didn't really know what it meant and whether it was being covered or not and that's one of the disputed terms fortunately i have i'd explained to the examiner exactly what they meant by preferential scatter it needs to be a weight guide that turns light into an elongated oval pattern so they define that and the district courts construction was simply that the rod needed to be in the shape of a long unfortunately dictionaries often lead us to the wrong resulting plane construction issues also the term preferential scattering the district court use the dictionary that preferential means desirable and of course that's probably a correct action or a definition but unfortunately in this case preferential is a technical term that has a very technical meaning and that was just what i wanted you to be saying present it we would you agree with you on the disclaimer point we don't need to get into these other issues one so it's actually an omega shaped slotted too but at slate and appears at the appendix page forty four starts at forty four seventeen and what's shown on that page is basically figure one which appears at forty four eighteen means if you look at the slate and path you see in figure one slate and construction and sladen explains this in columns three and four particularly column four nine forty five whole strip of those but that sits below this howell two and slowing describes a problem for what that is and he says since the di fifty one fifty three fifty five are extra to the outer diameter of the diffuser tennis that we've been looking at at how to refresh good light can be emitted from a fixture only after being two have to fit and and be seated in the housing now up there may have been a problem doing bad so this slot was for we don't know what the size of the slot was but it was shown in figure four neck permitted decides to be compressed so that these flanges one thousand and fifteen would fit in the housing where there should now so well those later show it shows us how to light that order to achieve that scary we have to be hot solid correct so i mean it does seem i'm having a hard time seeing why that when you put together what played into a lesser extent bishops show and when you put together the statement of forty four sixty nine and the two thirty eight pattern i mean i'm having a hard time again i can only speak myself see why there is not a disclaimer apologise in the way it guy phallus device none of the light hits the outside diameter of the light comes up from the inside is reflected off the walls by the way there are many other distinctions in the claims but it reflected off the talking about this space in here it is about the best to to the outer diameter they diffuse or ten refracted light can be emitted from the fixture only after being twice three frakt it by the diffusers that's not the case in our structure i structure is solid that's not the case  however fallon's device the infringing device does not operate like slate it had as i said we don't know what that meaning slot is going to be it's a small portion if you will but we are multiple internal reflections both our witnesses at trial are witness and found its witness said no that doesn't occur with balance device it is not how in that sense because all the light comes up from the inside never hits the outside you don't get multiple retractions as in slate that occurs also with the slotted to you're going to have multiple refractions when the light held in place yes so i don't see where they would reflect i mean like except but we don't do those zach lee again and slain doesn't tell us what the real dimension is there on the slot but we do know that these pieces thirteen and fifteen at least the witnesses testified likely extend our and you're going to get these multiple refractions of light because that which is in all respects the same as the diffuser ten that's his teaching i don't know the extent of the slot if you will but in any event there is a witnesses testified there is going to be li device and that very respectfully while this there's no question that the fountain diffuser that sits at the top is a u shaped it doesn't get there's no light hitting it from the outside it doesn't utilize these multiple refractions or the internal reflections if you will as discussed in slate and that was a distinction we believe was made where slade really keyed on this hollow tube if you will which i can see your honor on the slatted to it there is a slot that you can't say it's an entire tube i concede that but in all respects it operates the same per the teachings of slate pretty rolling here there was not a single mention of multiple refractions and when they tried to distinguish slade there was not a single mention of any of the things that he's talking about why slate may be different so what's happening here is there's a they're attempting to recast a disclaimer to recapture certain hollow thin wall diffusers like fouls and that is simply because these arguments were not made there really they should not be considered at this point because they're not in the record if you look at the rejection itself in the statements at the pages forty four sixty nine you will never see the turmel tipple refractions mentioned at least eight times by eyelets counsel you also not find anything about distinguishing something up distinguishing slayton based on it tubular structure that is really a change in the argument there was never perhaps when they were examining prosecuting the case they could have partly to tubular structure and maybe they could to agree with you on the disclaimer issue that we've been discussing that the case should go back or a retrial for a determination as to whether you provisional that was not carried forward and this it's about slavery being so global that all hollow thin wall diffusers are disclaimed we think that's really just a matter for the sport to change the claim construction and rule as a matter of law that were covered by the disclaimer destructions as they stand would put us in a bad position or perhaps you know that the result would stand because none of them accounted for the intrinsic record we have played constructions that they talk about something being the shape of a long doesn't get into hollow or solid it doesn't exclude them all of the futures we don't even have a claim construction that requires the quintessential feature of the invention that have been along it like pattern that's nowhere in any of the constructions even though it was described as being essential and as i said the quintessential feature we'll see is either it isn't even defending the claim structures they admit that they have a disclaimer of hollow we couldn't even get the district court to put that disclaimer in the in the jury instructions in the claim construction so that you know they actually refused when the judge asked should we be excluding hollo they said no so that's the judge absolutely went with dictionaries and unfortunately they were just out of context and that caused a very strange result to right what do you understand him to be saying it was well it's a little bit closer it really means if you accept his argument what you have is that you could never have the material on the outside the forms the lens because of course any material o forms of the lens would be a solid material it's not a liquid and it's not a gas it seems to me he's arguing that they only disclaim things they're somehow made out of a liquid or a gas because everything including slate and has a hollow outer surface