y good morning your own risk we're here this morning because the district court ruled as a matter of law that the concave cutting edges which are on the underneath side of this latest family and the  you see on the top side of the blade assembly on the table in front of you are equivalent to a claim requiring that the cutting and storing edges of each be disposed in a generally common plane which is essentially a flat surface like the table on which it rests while you say that generally common a geometric definition that a plane is a flat surface there is nothing in the prosecution history or in the patent specifications that suggests that planar planers plane was meant to be anything other than a geometric meet the geometric definition of a flat surface unless it's generally the correct way to acknowledge that generally adds limit some degree of deviation from an absolute flat there's we don't contest that which is why we're on a we do not contest and we're not challenging that the district courts claim construction of the phrase generally common play but all we have to have  in the same plane i can shoot even in flat plane i'd get more if i used it generally fly a plane curve to the limit and i could shoot a flat plane anywhere through that curved surface not just a subset of the plurality if if if the applicant intended only applied to two or more of the cutting edges they could have says this is in the single plane vertical none of the other edges stirring edges are in fact same vertical plane or anywhere near it you realized what i'm doing is shooting a hypothetical plane in the point through where i would capture at least four but i would guess i catch more edges than that but you would catch points you would not catch the blade surface catch which is one of the district court when and of course you say that's precluded side of prosecution history and that gets this into the exception for unforeseeable well your honor that it is true that something that is in the prior art is more likely to be found to be forseeable but i've not found any requirement in the law that something must be outside of the prior prior art in order to be only evidence in this record is that it was not in the prior art it would not have been a monumental task to have somebody to kill one had done live what what foreseeability means i can see that easily and responses to that your honor one is the by the plane construction of plane generally common a plane advanced by tetra pak they say just looking at the word at that at that language one skilled in the art would contemplate a curved cutting service so by their own argument in this court they are acknowledging that one skilled in the art could easily foresee a curve cutting service i bet there are going to change now we'll see a bonus point on time please go ahead the second point is this is really a relatively simple structural structure follow isn't it true you went to that only after you had the patent in front of you that's correct and so you were designing around you were creating a new entity and invention correct unforeseeable we believe so and those absurd you know if you don't mean that i don't mean that because it could be that it is not the same standard draftsman when he's looking at a claim that says a cutting edge and for some purpose a path ability we can't just determine for the record he says in order to get this claim all out i'm going to have to call it to call it a straight cutting edge of plane or cutting edge i'm going to add a limitation it says this cutting edge has to be in a plane it's not it's really foreseeable to still pad draft person that somebody might try to get around that by choosing a different shape much as if a pattern called for a circular element if you file an application and then yes we have that interesting you think it's invented you think it's something no one would have thought was obvious or anticipated so that kind of says it's and foreseeable  they're not the same standard your honor they are i can see that go ahead and my point was that  somebody who has a specific limitation to assessment of structural devices could easily foresee that somebody might choose once you've staked out your claim i choose a different path around the language if like so that would make if i believe that would help make it foreseeable counsel amendment now i will concede that we made some suppositions in arguing a different claim construction for agitator panel and tried in essence to divine some tea leaves from  what was available the prosecution history to come up with the proposal suggests a different construction for agitated ground but that that's a different context than the burden here where the burden is on the patsy to demonstrate where in the record they explained the rationale without without having explained and provided a rationale in the prosecution history that they left behind for the public to see them and use and rely on they can't take advantage of the exception to festival if i like to just touch real real real quickly on the evidence of equivalence that was before the court so that even if you're not persuaded by prosecution history is valuable or the all the elements ruled there is no evidence from the plainest from tetra pak expert that was that would meet the exacting standards of addressing either functional way results or the insubstantial differences the plaintiff the expert never even saw the accused cheese vat in operation so he could observe the blade interacting with the coagulant which is the liquid way and mixture in the vat we submit that if you measure the evidence from their expert against the expert in the them i can composites case he falls even short of that in which case this this court held that the evidence was insufficient to sustain and the  of proving infringement of the doctor equivalence and finally even if the court concludes that that gets over the initial hurdle the court was wrong in totally disregarding our expert testimony which was  something that goes to credibility your honor our expert did observe our cutting blades and how they interacted with the quagga them and compared it visually to how straight cutting blade interact with the  coagulant which is something that had to facts expert never did it his his conclusions were sold to draw not based on his assumptions about how they choose rather work rather than actual observations bastian really gone into this issue of first a claim construction and how it applies to this particular device when we look at that we have the district court judge looking at the record evidence before ever in terms of summary judgment she's given a plain just instruction she applies it to the device that's for you and all the other elements that are part of the proof record and what to expect believe is that fundamentally the judge's opinion on infringement and the judge's opinion on no we're finding no invalidity was correct and it was correct because when you look at the device first let's deal with the infringement downspout all the elements and in fact i think my colleague conceded that all of the elements are in the c s i change that and really that's what the judge's opinion was with respect to doc and will quit once and really could between the plurality of the edges and i think when you get back to we have a claim construction argument we need to do it even if you do that i think your honor had it just right and i think it's really just if you lay the plane on that if that's what you're talking about agree with that you are on about i think when we look back at the amendment that was made one think there were some remarks that there was no evidence in the record whatsoever of why these amendments were made and what was meant by when you have these amendments why would be that they are unforeseeable or what they could possibly mean the first thing on that is that this is not an amendment to get around prior art there is no discussion in the record of any rejection and what's important to note was even before the amendments from maine even before those amendments were made when you look back there was already allowed to claim one which is the the apparatus claims against which this device is being measure and the only difference that occurred with respect to the method claim is that there was some additional information about having a process step so you're actually cutting through cheese and stirring the cheese curd so i think that's the first thing that there is no prosecution history that trying to get around the second thing is when you look at the the final history what you find is that the applicant was very clear about what was being done with the entire set of amendments and when you look at that entire set of amendments that were made at the last go around it what you find is they they defined very particularly pages eight to thirty three and to thirty four of the appendix the what they were doing was they were saying two things really were going to reorient the agitator panel which is basically this device so that now we're not having both going cold rotation to going encounter rotation and then you have on the shaft panel the other direction in order to make that work that's right and so that was new and that was a new one on up and non obvious and so what happened is that so first they're saying we have this means for mounting which is the real orientation and we're being very clear about what we're doing book somewhere in that prosecution we get the language generally in the same line one were to say well it's and i think it starts out as two things there's a hand written lying and respective claims that language is rejected and eventually what happens is the edges disposed and so let's start there it's the edges it's not the entire apparatus it's not we're claiming it's basically a picture pattern and what we show inside specification what we're doing is we're claiming the device overall and we're making very clear that the edges that cut are on one side and that's the only edges and that's emphasized in the prosecution history and that's the edges that stir on the other side so you're really doing one thing at a time and if you look at the claims before that amendment was made you could see a situation where somebody could say well you could have both stirring edges and cutting edges on the same face and until the new language is put in that says both or the generally common plane and the edges that are disposed there so that only and that only language finds its way into the last element of  after this report evidence do you have that recording for c building with respect to the foreseeability i think the judge got it just right and i think if you look back at the fifth reports opinion what you see is the judge looked at all the art that was presented to her and asked that very question is there anything in that are and that's what to pack says in their research nothing in that are to demonstrate any type of curvature to any type of agitation device that's being used in any of these cheese not one that's the first very major point second point is and c s i came in they actually filed a patent application years after the filing of the application that led to the three forty seven mcmahon who was tech apax expert said this one would not have conceived of looking for curve blades it was just not something that was out there but it doesn't mean that they don't function in the same way and really when we look at the function wave result issue now mr frederickson challenged you on that he said the record doesn't contain and evidence to support the doctrine of equivalence in the first place i think the i think that's one your honor i think for the following reasons first the question is measurable quantity of additional fat solids that are now part of the cheese per or that you have minimized in some way the way that is produced which is kind of a byproduct of what goes on when you when you cut rooster the cheese and so what you're really looking at it doesn't do the functional things that the device requires those it cut in such a way that whether you're cutting up or you're cutting down that you have these blades trailing each other through this common volume that's all i think to try and say well you know it pushes and pulls the fact is their expert their fact witnesses all acknowledge the device tops and the device serves and in fact that's part of their argument and obviously it's everybody would know that if you want to play through a cheese curd it will cut it if you run it the other way it will stir it and so in effect what you really have is there is no doubt there's sufficient evidence and the judge cites to it down to the district court level and she was allowed to rely on that evidence and there really was no evidence on the other side there was speculation about perhaps the way it cuts is a little different but there's no clothing that there was evidence of the results of the cutting put in that but there was not considered by the district court judge who was part of the prosecution history there was no testing that was done think that when you're looking at that you understand that first when you have a device like that that is new and where there is a spark and i think this is one of the things that gets into the obviousness arguments which is there's a combination of arguments that are made by by c s i and a lot of them relate to this idea that you can construct a new devise just simply because it's common sense to do so and i think one of the things we refuted in our papers in the works it does what it was supposed to do and look how easy it is to do it all you have to do is turn the panel around and when you look at mr jag who was the expert and actually one of the panties against whom i guess the five were for pat motivation to do so and so when you look at some of the arguments that were made by c s i that they really seem to fall flat on that  a procedural here and they're using something like judgment on something as factual as an equivalent question well i think your honor when you have the record that's before you at the trial court level you're entitled to rule on summary judgment if may have some way that you can test it but that's not something that's part of the three forty seven at three forty seven pan in many ways it's simple because it says reorient and then come up through and palm down  and when it does that it ends up and there's some evidence of records that it ends up taking over the market and there's a reason for that because sometimes these simple things are the things that make the big difference instruction was right and for purposes of our briefing we accept that construction in the end have to pad did win the summary judgment determination on docks and the boat and so we believe that the application is correct i think when you look back and you step back we believe that a more appropriate construction that really looks at the surface of the cutting surface of the storing surface is really what this general tom plane is looking at is really what gets you to an opportunity to do but literal you brought up the idea that simply having a curveball is this idea that there's a simple structure and that they were attempting design to design around is somehow an indicator of the fact that the bill a that this model should be something that's outside the plane sco but i think this gets right back to the foreseeability issue and the fact that you really don't need to further into that and so i think when you step back and you look at what the district court did this report determined on a proper record whether or not there was equivalent she found all the elements everything literally except for the one thing that she said was docked in the quotes and when you look at that it's just one of the infringement is there and when you get to the ideas of obviousness it's clear that there is when you look back there was nothing that really could spark putting these pretty notably didn't you didn't back up his expert and say that is expert at a walk through the function of a result test or the insubstantial difference dest he's happy to tell you all about and argue all about it but you know if a court is well aware requires evidence in the record  that has to be linked by lawyer argument and as i as i alluded to the of them i can composites case there's a lot of lawyer argument in that case too but the underlying fact evidence was not there is sustained a finding under the doctrine of equi and at at worst it's our position that as the judge pointed out this is a factory intensive issue we've got a battle of experts and it's our contention that that the judge came the judge  supported case is appropriate and i'll tell you as a litigant i believe is a vet very valuable tool for the courts to resolve cases but the records got to be there and they made no serious effort whatsoever in our judgment to suggestion that this is generally common plane limitation was it was necessary to make sure the cutting edges were on one side and the steering edges are on the other it's in our brief the language before the amendment requires the cutting edges be on one face in the and there's no explanation of the record why that mattered u