says in a golf club we my method of doing something  you've insisted from the beginning here including i think in both of your briefs that this is actually a method to claim i understand that the general tenor of the thing suggests it should've been a product claim that's the way we and we interpreted i mean it seems to be more a product claim but there's a that there is some language in there that you know one could say mayfield makes it a little and you know i'd rather have you argued before you answered this question in this case have you just now have you ever argued in this case that this is actually a product claim one whose features are defined as the result of a particular process is my saying that our position is that this is a product claim the removing in relocating of materials the queen's requirement who would be infringe i'm sorry if you say that again if they are if their motives into their final form yet without that removing them relocating immaterial computer models so you're not necessarily the prototypes or the the samples are often made on the computer models you're not physically necessarily moving off structures you sort of virtually in the electronic sort of world are moving things around so in that sense you're taking way from various parts of the top from the middle top part and in this case you're moving into the to toe in the heel of it and you're using different construction heavy steel polymer in this case combination still polymer some other materials so it's not really you don't take a piece of iron and scrape off a part of it and then add something on there for say really what's happening is they use our as our expert performance of an identified process so even if you have that then you might be able as you have accused the clubs of making and selling of the clubs if you could show that i guess in your view the designer sitting in front of the computer screen with the cad program right on there actually started with a club kind of a traditional club right and said well let's shift this down to here at  that center but you would still have to prove that the designer did backed your honor if your first question we started this discussion you you ask this is a product by process and i didn't internalize that and i and i know it's not a product by process but really a product design and the reality i mean in fairness to the party and rapid and inventor the reality of the way in which these products are actually made as well as i boards understand from the experts in this parts of that part so there is a design method invented in your forming the product but then once you come up with this i want to i want to keep the glee club to have this many grams for example various materials could i use and replace with still various densities to make that movement of grains is so it is a variance to the question that this is the kind of terminology that people are skilled in this  when that's what you're trying to do and the best claims don't have any language about methods like manson's they say are they are straight forward legitimate traditional products the claims are a bit different yes i agree with your honor but but that's only i think that the drafter and the inventor in drafting these claims that i was not the one but they're struggling to trying to trying to capture the thought process of the product design and in their end and certain kind of features yet to get there i'm concerned about just how much of violence one needs to do to extremely traditional claim language that's written in terms of methods all the claims are message claims and that there must be a limit to our ability to say we kind of know what this package is about and is getting at and we will ignore language that everywhere else has a standard meaning method a see a series of steps taken and i think you are asking us to do that by treating the claims as product claims that embody a certain set of design principles in a sense what we're at with the the way the claims are being read or honor puts it but one of the already an ordinary school in the art could read these claims and understand well i'm not actually taking a product and taking it through these various steps in the sense really what i'm doing is is going through this well the claim is to be interpreted that way by a court in the p t o does that but the but the but when the judges sitting in the place interpret construe claiming this is from philips fourteen fifteen federal reserve thirteen zero three  and intrinsic evidence really is what controls the course of the specification the prosecution has treated the background except that in this case the district court erred because instead of looking at the intrinsic evidence we submit they went protest i believe it's a method claim not a product a process claim but i would offer that i think it's a distinction without a difference because in the land except plastics among other cases the court was clear that you still have to prove the method to get to the product anyway so i think we end up brief that i guess that the process required might be either of two things the actual manufacturing process or even if it it might be the process followed by the designer sitting in front of the computer screen put aside the manufacturing process for now you say that there is insufficient evidence says that the occlusion a designer took what are really only two steps namely remove material from the top and stick it on the bottom even on the computer screen and while it appears that there certainly is no direct evidence of that why would the indirect evidence not be sufficient for a jury to find that the designer did that because that's kind of how do you you start with the club on the screen and you lose stuff around seemingly supported by the description in the clue she had specifications of just that it's not direct evidence but why is not is it not from that standpoint that is not evidence of what was done to design and develop the club that was at is only evidence of what mr serato did during the mental process to come up with an idea involving claims ultimately  and we do not run away from those marketing materials notwithstanding what the point of the set those marketing materials are entirely accurate for the purpose in which they were in ten which is to explain what the performance benefits were so that would be the only indirect  was he didn't know how the design process was done now and we did give them all the cat drawings we did of course make the designer available for deposition and the only thing in the record as to what the process was is that he did not to your specific question that they did not start from a traditional clubhead and take material electronically or otherwise they say started from scratch because this was in our very being tightened to disbelieve him if there were some contrary evidence but i don't think a jury can speculate based on marketing materials that talk about performance benefits or based upon patents that talk about something that happened in channel questions well we actually disagreed with the district court in this because the district court concluded that it was a design process not a nice factory process but then never took the next step which we had risen our papers which is even the best of design process we don't write it out of north and so i guess i'm wondering should we really be entertaining these arguments right now we don't have anything below that maybe sort of finding well that's the case law it's clear that the court you engage in these kinds of developments of crowds the only way you can determine whether it's an adverse is by doing test whether it's player testing the robotic test that he's unequivocal in the record on that equally unequivocal on the record does no such testing w adverse consequence in the patent it's up to you to understand it's less than what you intact so we have this anomalous situation where so that the inherent goal of the patent is to increase the height of the stru same thing and not infringe because the tiger woods there is an adverse consequence and that is kind of the poster child of indefiniteness the other reason we don't necessarily need to get to the issues whether it's of desire or they didn't respond to the opposition we raised again in our reply we raised again an oral argument down below and during oral argument they didn't respond to adapt ironically when we raise it again in our papers they didn't respond to the waiver argument in their opposition so i know that's certainly within the court's discretion whether we view this as a second circuit or federal circuit issue because it's not their arguments are not totally clear whether it's a clinton trucks argument but regardless they have the aptitude they have the obligation to raise these issues with the district court the district court can't be found to have been in error in not responding to arguments never raised so we think there's a serious labor problem but independent of the waiver problem they clearly have not met this from addition because clean two is there's a space there and they have concluded and this goes to the problems we raised earlier that because there is a channel there there must have been still there at some point there's no evidence of that they proffer nothing but if i can accept that as true for purposes of this discussion that is the remove material of the claim then goes on to say that the next step is determining the weight of said remove construction material the third step is it in the lower areas  g said remove construction material or having said determine whether it's very clear that what ever the weight is of that steel has to be found lower in the crop so the moment claim to it satisfied no change of now with what happened thereafter namely the assertion desertion of the little plastic thing does in fact change the way the where does this claim say that the ultimately sold completed club can have a different weight from what it was i don't know how to finish that sentence which is part of the problem or are the dreadfully unclear i tag i agree with that but just on this point the district court's logic was the weight changes even if you move everything all the metal from top to the bottom because you've added plastic question is why does the claim not read on what happens before you added the plastic because of the other plan or is this way we so first we remove the steel in the child hypothetical let's call that ten grams o court identified was the limitation claim one of the location not used during all strike in service that is actually at the end of the day does not conflict it it has the words him a lot more than other people do but the reality is the intended shot is always the sweet spot the other reality is that we never actually consistently hit the sweet spot even the best so you the specifications solve makes very clear about when there is no adverse consequences and where when there is if you look at the stuff you can so we don't need to look outside of the record we just saw him did this is an issue that the district court did not actually the net weight is the same so you're moving soon after the plastic insert yesterday it is my understanding is the same and on that point though again from sunday is the the way in which we understand the experts understand how these bugs are made because structure material is not limited to steel or polymer so you have a design that has a mixture of steel and polymer and again you're moving grams by varying the density of the material at the top versus the bottom so you're moving grams from the top of the bottom but this is a sort of fictitious or arbitrary conception that there's a step of first we have to cut off the top and then that's a preferred model that we have to cut off top to the buck as a practical matter nobody's cutting a clubhead and scraping weight off of it or using chads or on the cap inside the computer models to take weight so we can say we have a with a mixture of of construction materials