for a total of six cases today three of which are being submitted on the briefs namely appeal number zero five dash thirty two fifty three ron's versus the office of personnel management appeal number zero five dash thirty three twenty three freeman versus merit system protection board an appeal zero six dash thirty eighty three lopez versus merit system protection board first on the argument counter is appeal zero five dash thirteen like the claim terms were construed even though there was some language earlier in the opinion to the effect that it might not be important to construe them well actually but the court beloved a for example  misconstrued a claim limitation involving the aperture right turn opening specifically we say any hole in the court never reached that position and said that it can't be a misconstruction if he didn't define it right that's the problem there's from the opening and some further effect when the last american material was pressed against the blocking element well of course david bentley that it was a car two mechanisms one of which opening that would retard spillage so not necessarily limited to a very narrow slit but also not maybe including a very large round hole for a few reasons one of  missing are you asking us to raise the discussion distinguishing several prior art references on the grounds to so i'm not asking you to agreed with this characterization  best i can do to summarize it that the claimed invention involve using both the leakage retarding feature of the hole or slit and the liquid retarding feature of the membrane being pressed against the blocking element i'm asking that for the dependent claims that were prevented with later on that the patient should be present however to be independent playing which do not happen in the patient which were brought in to any opening that limitation should know that that in the mission should not be right but language by that you submitted to the patent office that i'm referring to didn't make any distinction among the claims it seemed to say the invention itself required two forms of leakage impedance one from the shape or dimension or and material of the slit or hole and the other the for you answer mr morris is for pardon mr collins of arguments under nine thirty one i'd like to ask you with respect to the other patent i think the nine twenty is the number of how we could possibly  rm and invalidity summary judgment in the absence of any construction of the dispositive claim limitations why isn't that but i don't want you to use up all your time i guess we can just look back at my recollection was that there were terms that both side agree rima tiriel which he declined to define and then he went on to invalidate an entire patent in all it claims having never construed critical terms in the idea even even if he did construe the critical terms or enough of them how can we uphold invalidation of all the claims of a patent when there was no the court specifically addressed them and rejected the arguments of able now let me ask you another procedural question as i recall in this case with regard to both patents the magistrate judge did all the preliminary work and then filed a report and there were objections to the report filed by the other side and the district judge adapted to the report entirely as to both patent with no change and as i recall with no discussion at all of why d objections were irrelevant or wrong now normally when there are objections good there's all there's no there's no opinion here there's a judgement order with boilerplate language about how i've considered everything relevant and you lose but that's not a reasoned decision that doesn't tell anybody what was wrong with each point the decision relies on self a self sealing opening where do you find the word self sealing in these patent claims you just use so in so automatically we have a self sealing feature and a blocking element the same time right that i swear i can see yes so anticipations off the board there can't be anticipation they're not that there's nothing identical in the prior earth and if i look at the prior art i see that some of the prior art has a blocking element some of the prior art has a flexible self sealing appetizer of some kind but never do i see both of those together now why isn't he appropriately distinguishing himself by saying i am the first to bring those two together and the district court never picks up on that the district court says right the two separate mechanisms work together not independently it's like the opening was not self sealing the opening only works when it was put together with a blocking element because when  back right if we don't read if we read the prosecution history as i suggest then the district court made an error didn't you be put everything on further meaning separate to which it need not me it may mean simply that they work to get there to further prevent the leakage well that's the that's the issue that's the issue that's that's the issue whether they have to be separately ceiling or only ceiling when working in tandem they get it working again and that you have one ceiling m not just like in prior art we just had slit that was used and what what what are we to make what are we to make of the fact that the prosecution history language uses the term slit but some of the claims were amended to use a broader word than slit when the passage was argued distinction his invention over the prior art based on this two ceiling question as you know you're saying that there's a way to read this language as equating all shaped openings with slits but at the same time as i understand it he removed the word slipped from some of the claims and substituted a broader word which would seem to negate the reading that your suggesting so i'm asking you how do you reconcile the amendment don't have a slip against the blocker but you you are saying well that may be accurate but by saying that he meant to redefine opening to be limited to those openings they otherwise would have our case look suggests he can only be held to do so if he does it quite explicitly and quite deliberately i don't see much evidence in this language that we're debating this is that there was an attempt to abandon an ordinary meaning of the word opening to redefine opening to mean only those openings that qualify a slip but that seems to be exactly what you're asking us to conclude not just slip because we have things that w thank you thank you issues ever came for the district court in the not for the court today there are secondary considerations various other issues that were never presented by asking the other side we just remember how i thought the other side had started out arguing obviousness and anticipation salinity with respect to the six twenty patent in a trial on infringement at least on the six thirty one and then there's the likelihood that they'll be appeals back here by one or both sides and we'll go through this all over asking a question on the supposition that we might send it back and then i'm just speculating well then what happens next and how much more delay and how much more wasted time at the disregard now much more wasted time here and is there some alternative to all these attorney's fees and delays and and so forth this is just a thought for you to consider thank you and we thank you both for cases taken under advise