today in accordance with your statements about the timing and doing the configuration of the issues that are presented on appeal across guilt and less the court would like to proceed differently i would propose to divide pra district court's ruling is the product of several clear errors there is no evidence of intent to see the patent office on the record and there is no evidence for which intent can be inferred is there a difference between the two the struck me in your second brief that you pointed out that these four statements with the district court in the law and on were made homeless in the prosecution of the one fifteen patent and not the six patent understand correctly that there are differences in the patents only to the extent that there are of course differences in the climate as is my state magritte of the four statements the district court relied on in your view were only made in the prosecution of the one fift but but it does seem to me that it's one thing simply not to produce something it's another thing to say there's nothing out there that is contrary to this if in fact there's evidence you know there is but there is that and that is exactly the point on the intent argument around it there is no evidence that any of the attorney or the proper or the inventors had any awareness that there was material prior art that was not disclosed the four arguments that were made during the prosecution of the one one five patent related to fort worth features of the invention had stoop theoretically i suppose it could but the the whole point of intent is that the inventors and the attorney have to have awareness that what they're there is something material out there that they are making arguments are contrary to a simple mistake does not amount to a natural comic eight nine open for this testimony i specifically said that any time there's a change in the diameter of something in a valve or any flow control device that could be a restricted restricted  office and then he went on to say the references that were disclosed in fairness could be looked at show as showing that ninety three zero four two nine three zero five then there is the inventor testimony from inventor martin who said that he did not believe that rest of the four statements where the people explaining why they saw that the statements were not inconsistent with the are all prior art but that's the problem because pope was inconsistent with the statements that would be one but i don't see that they did that because they couldn't have done that your honor here is the reason why in real time when they were prosecuting the application and in real time is when you do the inten in real time it never dawned on them that the article art could be significant so in real time they would have in order to get that head look at it testified that that never occurred to them that the or was inconsistent with these statements but i don't see that there years later they say it never dawned on me i don't there's no reason i can't tell you your honor i can't tell you the jury why it is that i didn't disclose it because it didn't cross my mind i can't tell you why at the time i thought these weren't interested because it didn't did it it would almost lead to a duty to investigate if an inventor has some they go where there's a component to an invention that is a multiple component device you know this isn't an invention threads because it when one reads the book when you see the school threads and there are two sets of screw threads are you talking about the ones at the bottom of the velcro but if we look at page seven of the yellow brief it's this group threads at the bottom which when you read but if you look at the figure in the there's different shading for the valve body and the screen throws right they're not they're not shaded the same on that the hash marks go in different directions so it seems clear from screw thread a still only engage with the tank and it does everything that the specification tells you it's whether to have where it's located and that what and it doesn't have to understand what there's no or part of the have any figure there's no requirement that anyone has to have a a reference in a row what the requirement under one twelve is is that it ought to be something to be indefinite has to be insoluble ambiguous senate threats no i'm talking a if you look at the bottom of what you're calling the valve body there is a structure which i thought use what you were just talking about with judge type that it has cross hatching that goes in the opposite direction name of the object that it's crosshatched in the opposite direction from the rest of the velvet i'm not necessarily heard given a name but when one of a different structure it's i patent hadn't been knocked out but you're quite correct your honor it is a matter of law it is done on the intrinsic evidence and if one looks at the entrance of government as we have no help on this there's no support for your position i could never respectfully disagree i think that when you look at carvel is it at carvel us and chairman of the very least agreed with our claim construction which would which by definition reads on the body fifty and the screw threads i propose construction that it's a structure that connects to the amenable to construction these are in terms of degree in terms of of physical attributes this is something you can look at understand and it's a simple mechanical structure ancillary to the to the heart of the invention of the eight nine five ten or one thing i do want to point out the eight nine five pad isn't just a third pattern that we're piling on six or nine of the one point five at ads here it's an important piece of praxair is technology that we think protects some very important aspects of  please the court i'd like to begin with the integral conduct issue and i'd like to begin by addressing the question raised by both judges dr brights and regarding whether there's a difference between the one one five in the six are not in my mind there is a difference but not one that makes a difference nine and that arises from the fact that the claim language the material claim language and claim terms that are in the six of not are the same as those that will be or given in one one five and the relevance of the materiality   she concluded that these three people had knowledge of material prior art that it was not disclosed to the patent office in there was no explanation from all of that of from honor and i believe i believe there's no abuse of discretion with regard to her inclusion guarding intact i believe the principal basis for that conclusion which i think are supportable are first the absence of an explanation given its materiality this court's precedents hold that where there is something that's fairly material as this clearly is and let's be clear why it's material these inventors were using the r f o's in their own devices for precisely the same purposes as the invention that they claim i eat to protect themselves from hazardous gases is in the semiconductor industry that's not as shown as intent to deceive it is something from which intent to deceive may be inferred and it is of course not a smoking gun document that says which we which we really the issue is i think before this court was it an abuse of discretion for the court to infer intent based on the absence of an explanation where the inventor was using this prior advice for precisely the same purpose and with the i think what the problem she seemed to have been confused and because in her opinion and the ninety two she refers to these were statements that we've been focusing on this having been made in the course of the six on knowing that prosecution it's hard to know what's in the drugs mind of this question i would characterize it slightly differently here are i would say that she relied on the fact that they made the four statements which are believed to march of lee inconsistent heavily on heavily relied upon them but not solely she obviously clearly strong base in the four states with respect to six of nine you have perhaps a bleed over from the one one five if they were down the leader if their intent was the same throughout than we really have evidence of it in one one five precisely the same purpose and the failure to disclose that which is quite material and if which is conventionally used in the industry described as being conventionally as in the industry known by them to be used conventionally used in the industry the same industry for the same purpose yep it's very different these are infos are very different they're not they're not ups clean they don't involve capillaries in the usual sense they don't involve that it's a different it's not the protection hazards gases that's the argument that's being met and the fact that there was something already there which does that and which is used by these inventors for that very purpose is then going to be a subset of basis for examination about whether a capi based system is truly different in a material what and maybe it isn't is it but the examiner should have the right to understand that and i'm sorry good condition and the fact to me that the materiality to me is the driver for this if in fact these inventors were using personally these devices for the same purpose and if they believe their their invention was an improvement on that and maybe an examiner would agree with them the point of an ethical conduct is they have to say what they were building upon what they were changing from and they did instead the specification and specification doesn't contain statements as egregious as the four but the entire point of the specification is this is a way to protect from hazardous gases that's new in new york and the examiner should have been told of the very technique they were using for that very purpose because then the examiner could decide whether that's an improvement and that is materials  thing from which the inventors were building tiriel yes but she did need to balance material or carry out the unit i mean that's part of the process and it is certainly part of the process and she found intent i think fairly we can we can debate the language of the order of she found intent with respect to six or nine from the absence of an explanation given materiality which is something this court precedents permit and she found him intent as to one one five in addition to that  inventors knowledge of and personal use of it it's one thing to have a smattering of the inventor if it's clear the inventor doesn't have an absolute gains over anyone but but there's knowledge of a straight patent sitting in a file is one thing their own personal use of that device in the exactly the same context for exactly the same purpose is to meet a greater evidence of materiality and intent is not something that would slip your mind it's not something that i didn't think it was relevant it was exactly down the middle of the fairway of what they were doing and yet they didn't disclose it to give the examiner an opportunity to side of their capillary based system was truly an improvement over innovation and invention above the  certainly cited the praxair that's evidence just as larson was of what was conventional in the industry what she was relying on was insane that when she referred to the praxair employees who abused this she wasn't someone that therefore we're the testimony there square linking testimony in the record that says what the press there with this was describing this is what drug problem cited in her in her opinion was just the conventional use in the industry so it's not that this was something unique of these future sales it's certainly true that she mentions the size of the companies i don't think that's the primary driver analysis i think fairly read her analysis says that perhaps they're simply failed to do  it was a failure of proof issued i don't think she's establishing a purporting to establish a new rule of law what she's saying is of course in this too competitive market it is possible that an injunction would be like what should be entered and she express m i was having sales and encouraging product and they were increasing and therefore praxair was the patent need and who have had it had a valid patent that was being infringed they had a right to exclude and she simply said no i believe that analysis would be inconsistent with the e p a says that you don't automatically get an injunction in the patent case merely because a patent gives you the right to exclude the question really is our money damages inadequate to compensate them for whatever damages are occurring and i think her opinion was fairly straightforward and say it's certainly possible that such a proof could be met but this party gave them another opportunity to do so if should this court do something different than  can come back after the appeal she hasn't foreclosed that i wouldn't presume to second guess what she would do if they did come back it up for that to happen wouldn't we have to indicate that her criteria of denying the injunction were inadequate i believe i believe the church criteria were simply a failure of proof and if you read their their papers come again the papers were pre paid papers even though it was posted by it was we got it injunction that's really the end of it there were none of the typical things you would see in a non patent case pre book of here's why money damages are inadequate often you would have an expert that would say it's difficult to convince customers in change once they've started there's qualification issues whatever it is  there is a body of evidence that that lawyers and parties put on to establish a reputable hot they did not do it and her point which i think is a point this court actually should reinforce not undermine is that parties do have to do that they should just come in and say here's my patent give me an injunction i believe e bay change that rule and she's in forcing that rule and i think that's appropriate for her to do and i think it's appropriate for this court to reinforce that position because in fact they did audience it is fairly clear from the three statements what they think the port body should do and it's fairly clear where they think it's located what it isn't clear and this court precedents are quite i think uniform on this issue you can't describ structural apparatus in functional terms that cannot be that you just are saying here thing that i'm going to tell you more or less what it does this isn't a case where someone threw in a term in a claim prosecution that you're found in the patent this is clearly in the patent in several places it's in the only part of the description of the invention it's in the summary of the invention it is not in the details for description it is not in the section which says on figure two for example th not something where it says the poor body you the typical detailed description of course as we all know would say the port body number ninety seven the numbers missing i mean that if the question is is there is it any more fundamental or misleading then your mission  i believe it is and i think the evidence for that comes from the fact that no expert has been able to say conclusively in fact points out other experts are saying i can't figure this out it might be this it might be this it might be that the function of a patent is to describe clearly what a device there it's not so much that there are two or three alternatives although their expert came up with two or three alternatives it's that we don't know what it is you can't give us an alternative interpretation one alternative interpretation is that the port body is not the combination of all three of the things listed in that one paragraph in the summary of the invention but it is that that it is destructively those three things and it another alternative is that it's more than those three things we don't know they are trying to add the screw threads of the bo prophesies about what that should be and the normal way that the court would find it not indefinite as you would have an expert who'd be saying i'm looking at this it's clear to me there's no ambiguity about it in fact you have their own expert albeit in another a correct claim construction where is for example one severely limit you didn't offer a simple severe limitation claim construction or offered one which is much more specific and under and that we let out of the grief how both sides understood that the court understood that to be our position there were as though a question raised as to whether that would be sufficiently definite our position was that it had to be severe that was the core position it was always i think fairly stated and both sides acknowledge that we laid that out in the brief and the specificity in terms of float was a subsequent attempt to make that more definite so it's certainly true that we offered a more specific respect i don't think so and i think that the portion we've cited portions from the district court's opinion in the brief that make clear that the district court understood that our poor position was the severity without the specificity so there's no question i think th a jury trial and women with the rules are pretty clear the saying that for precisely the purpose of avoiding getting into this kind of well our position was clear from the beginning and modified it in the rules are pretty clear that you've got say in so many words or words to the same effect we think it should be severe or severe with the numeral is the enumerated degree but failing that at least so there i don't think there is not that to the court as a proposed your instruction at the time of trial at the time of the instructions being given to the jury to believe the the objections were given by either side at that level of specificity i think there was incorporation by reference back to the arguments of the market and so we're we're in the same position we were for that if i'm right that judge robinson understood our position to be that it must be severe and if you're that to make that more definite you might want to hear and you have different claim constructions and then the party sort of ignore the rule fifty one obligation when it gets to the charge conference and we're left with the kind of mess that we have here some cases we've said that raising the  e the issue of the charge conference is excused by futility but instead as a general rule you're supposed to go there to the charge conference and say this is what we want so that the judge knows what the issues are after all plain construction can change during the course of the of the proceedings and this is in the district are supposed to have a last opportunity to say yes or no to what you're asking for and that didn't happen that did not happen i think this is a more conventional case that is a is approved by this court where the parties on the court believe that it was all settled and it was we're going to leave everybody's objections from before maintained and i with respect i don't believe this case is as messy as others i believe that's not necessarily about is the max like device the district court already ruled the max like device was not material she said at page a seventy nine and eighty a reasonable examiner would not have considered such personal information immaterial to the prosecution of the pads and suit she said there is too little the district court's taking issue with certain certain arguments were made during the prosecution one one five and which he says are incorrect in each and every instance she bases her conclusion that incorrect x twenty three d t s twenty three is larson there is absolutely no evidence in the arguments were made were still correct and would have still been correct even if larson which they didn't know about was in front of the examiner with respect to the question and claim construction that grazed it from the air in fact a j my is an ambiguous statement that is or claim construction the so you are you saying the me make sure i understand exactly what you saying that they never proposed a broader less specific claim construction not to my knowledge