ten and in a letter with accompanied by an affidavit to the examiner which specifically stated you know this pattern shall be utilized and is different than the prior art because it is no in hindsight yes you know it would have said hydraulic cement and then we probably wouldn't be here but the question is what was and and you're here because of the correct address but the reason for the narrowing and the intention of the dr pomeroy which is it is also kind of necessary to determine what was narrowed and what wasn't narrowed and that's the reason why you know there's an argument and that's why we're here is because it was clear his intent was to utilize a hydraulic cement something that would have for the prior the actual utilization of the term portland cement is essentially dr pomeroy being on penalized it by taking the suggestion of the examiner what i guess they should have done was you know continue to fight with the examiner i mean that's what the whole bit should be precluded from utilizing the hydraulic cement which was your intention when people stop negotiating get what you're ready to settle but it was clear from dr pomeroy's intent that he did not give that up and that it was treated by example set on it which region to claim ten which says these are all you know the and so with that based on the background which says discussers not only the a poxy but other types of materials that can be utilized in this pattern that's in this pattern and in fact it's even shown in the lead a creep p or the prior art discussed as well the poxy essentially the same as portland cement you know there might be state doesn't wash as easily any cracks but there are basically the same thing and so when dr penrose mine which is clearly evident in the record he still maintained and he still had the patent over the epoxy and in fact the only thing he was disclaiming was the transparent poxy which was in the patent and that's why he narrowed it in his mind it's clear by the acard i mean if we want to use the strict claim preclusion then example three of the eight exception shows that he didn't intend to disclaim any was just a purple no no no it's not because what you're doing is by utilizing the poxy as opposed to the parlance meant you're coming out with almost exactly the same prop and that's what he was trying to illustrate to find otherwise would essentially cause other patent they would just limit the examples because what you're doing is you're giving other people ideas as had to steal your patent but just including an example in  shows some idea that the proxy was going to be covered because to find otherwise since it was granted since they were granted the patent to find otherwise would find that example seven claim ten would be  correct correct not argue that the final composition ends up being an opaque composition which is what is taught in the ender's for ninety one opaque composition which includes  was supposed to be example seven when claim one did not have portland cement material now that has portland cement you have a combination claim one comprising portland cement claim ten saying where in claim didn't feel that so important cement was found properly i believe to be in every single claim and it isn't claim one the only independent claim of the patent so if you read it through claim ten has to include by claim proper claim construction portland  element of claim one along with the proxy days compositions of clean ten and there is no example that includes a portland cement with a poxy base composition so there march of two thousand and three five months after the examiner said i'll remove the ender's so he comes and he says we're overjoyed hanson because johannsen this is fluorescent and we're phosphorescence and there's a difference in when the incident light hits a there would still be a claim darold amendment substantially related to patent ability to overcome in a poxy base composition prior art and that's what you cues to devise is a poxy based composition so they would still be there with hydraulic cement and they would still have this equivalence argument and they would still have to get over the festal presumption and they fail to do that if we consider also that portland cement is interchangeable with hydraulic cement again for the sake of argument then we have to look to their admission because they admit it during discovery that the used device does not contain portland cement if they're going to be hell to  abuse compositions it's also not merely in general to the extent that peers know more the marriage gentle relationship the extent that the change was made to overcome prior art that has the equivalent in question this court had found in festo nine that you can't claim ten gentleness in that circumstance so they can't get over that prong of the test as well the thi factors which includes issues of language and whether or not you have the opportunity to explain it clearly poxy based composition was not a surprise they had an example in their patent it was brought up by the examiner it was in the prior art so they there is no portland cement claim ten in that goes against a claim construction as we know it from the dependent claim including all the limitations of space plane plus any intervening claims and if you do that you do it properly you have to find that there's look to the analysis of of the festival and its progeny we look to the rebuttal rebuttal presumption they fail there in our left with looking at whether or not there's a way that they can either claim that there's no portland cement you doesn't matter we're still here if we call th that may have been absolutely necessary to avoid a particular prior art in in such cases this court found in seventy seven us p q second twelve forty seven in such cases we have held the patentee to the scope of what they ultimately claim and we have not allowed them to assert that claim should be interpreted as if they had surrendered only what they had to and i think that applies well to this case in the sense that if they want to try  extend beyond portland's and that they should be held  and did not allow the doctor clippings from the same kind of reasons as we have here where there was a claim narrowing amendment right on point to the accused device in the prior art was the equivalent  this letter after the amendment was made where including the epoxy including the paper it was what do you think of that letter from from october twenty ninth two thousand a trooper nine hundred twenty ninth two thousand and two that was after the event clearly shows that both dr pomeroy and the examiner were contemplating  examiners statement which is favorable to your position followed by the amendment which your adversary claims is not followed by a letter from your client referring to  to a point of view that the examiner held before the filing of the event but am i correct that is correct amount of chronology correct grammar but with the letter and then the subsequent utilization of the claim that included the a poxy as an example that correct all of that in conjunction i mean this was a summary judgment here so all there has to be is one genuine issue of material fact there's two three four five what is what does that transparent those are all issues of fact which were determined because there was no market here and to a guess delineate what the claim was since the record contains so many questions as to what's claimed what's not claimed what does this term mean what does this term not mean and there are obviously were at least genuine issues of material fact we work here on my summary judgment but on there's taking