layout case and other cases teach us that the degree of persuasion necessary for adequate claims is a function of the nature of the subject matter pat earth i don't know how many of them but are you saying every single ball or minus one is your claim construction i don't think so in the context you're out here because that you wouldn't you wouldn't have you couldn't get that n number but that but that no we're clearly provides the parameters mention of what we're talking about here that we're not when we're dealing with a very very finite physical thing involving the dimensions of the human that and out and out submit this was a point that we could not get across to the trial judge that in that interest ruling the scale of the relative quantity was that you would look at the shoes i would be getting very definite and i would be giving number and i would be pleading with the court to see the wisdom of how definite you are giving him number twenty one we are i  the judgment and remain in the case so he's a claim construction and something definite based on the fact that we hadn't gotten to playing construction at that point in the district or but i respectfully submit that if you read the language of the patent and he says he cannot get to a claim construction because you won't give him a number that's the problem he doesn't know what it means he is seeing the same sorts of hypotheticals that judge kronos and judge guy are just gave you with thousands of people in a room and you're saying one must and that's enough if you read the language of the pet you're author and look it would be going back to generators point so you're telling us that we should construe this is not being a net because we're limiting ourselves to this range of three to five and a half or three and a half to five key to the district judge i have a feeling we wouldn't be here construction your honor of about twenty one if that's if that's the construction that the court chose to adopt had it not failed the patent is valid we balls we have anything twenty one twenty two when we were alerted that would be the construction i would say if you adopted a construction that said bal twenty one balls although it would only house and lex ability that in the number of  substantially complete when you started off by talking about when i asked you about time and place i think you said by per that can you tell me what in the specification points us to that kind of clarity or definitiveness in terms of a or one particular moment you let you have twenty three people twenty three bowlers twenty one balls so you imprinting at that particular time even though it's just what i mean people walk in and three to five and a half span with that spacing get you to twenty one it's pretty clear isn't it i mean what more do you need twenty one twenty one i subject object of the invention to provide a relatively small number and then gives them the span that's beyond the very next call in your honor it talks about a span between three and a half in five which is well meant to be less than twenty one so then the question would be should the claim be interpreted to cover fifteen all which is that it doesn't tell us there's no determination here there's nothing specific that guides the person of skill in the art to know should it be fifteen should be twenty one or should it be some other number and what if the standards in history change so number should be we don't have anything in this specification whatsoever with which guidance as to what the ratio between small and large should be it doesn't cause any guidance as to what lord should be the wall would maybe be differen far more than here where it's twenty one our last an ok maybe it's fifteen but one of securing our kind of figure that out here very quickly first of all your honor the t have zero guidance in the specification and that in my scoring seattle walk says that we therefore must determine whether the patents specification provides some standard and we don't have any standard for mr for measuring large and giving to the courts question about your kinetics case in that case we are dealing with plain language was so to mention to be able to get into the to the open door at the core and yes there are thousands perhaps of brands of cars each having maybe slightly different sizes of door openings but i think one of school in new york is going to be able to determine ok i need to be able to fit in certain hand right so it's a more i'm already in between three and five and a half there are multiple watchman's more than even twenty one your own what if a ball manufacturer decided i'm going to start measuring a once objects were bowlers are coming in and trying out balls you might just have five balls here and you might have one person coming at a time and it's a corner we don't have any time or place restrictions here we don't know if this means that over a one year specific number of balls and so we had to the court said this plane was not capable of instruction so any examiner understood that it was something less than twenty one ball or not even sure the court can infer that claim he was giving an example of the proper claim construction about twenty one bars or less well again i don't believe the examiner was assuming anything about about twenty one there's nothing in i one is and i don't have to be the one that does it it's one of the group of skill in the art of polling who must know this without even thinking about it this is what they go for a living and the standards were changed or maybe they won't be one bureau we do have some guidance in column one in that very paragraph it talks about the span of three to five an adventuress which balls can be adapted for use by most bowlers again then tells us this isn't much higher than the diameter of the pot the sufficient period for the proper process to take place and next on the this court said no the limitation on that period is required the the in the only case where this vivid color appearance of the sunglasses this court says the statute does not require a particular number that was in a different differential effect was sufficient that the patent provided a general guideline and examples sufficient so all these cases could not have been respectfully could not have been decided the way they work particularly in these be ambiguous it it just cannot be construed where there is not an alternative construction of the claim that would cite as the poor pointed out in his questioning a minute ago the issue here is what would a person skilled in the art of barrel to get not nearly as complex as these chemical processes and whatnot i would understand this to mean and we have guidance exactitude not being we're far we have