summary judgment or not infringement proper and we submit that it wasn't that limitation was met at the very least there's this piece of fact and then the other issue was whether there was an abuse of discretion that the elongated body is includes the orange substance but does not include the head that is to say the white piece with bristles or that the flexible and long dated body includes the orange substance with the head and the reason i ask is because in several points in your brief you suggest that the elongated body is less flexible in the head portion which i soon was attributable to the head which led me to believe that your argument was that the elongated body includes the head portion is comprised of a head portion and a handle portion and then the claim also has another element called the head which is not part of the law get about it question is this is the elongated body when you talk about the elongated body is it in fact the entire tooth brush including the head are does it exclude the head so i think technically under the way the claims written it excludes the head so for purposes of this case and the accused product which is made up of two colors orange and white it's your view is in mapping the qs product on to the claim that the orange material is the claimed along gaited body and then the white portion excluding the bristles is the claimed head element that right yes ok but then just following up on judge bryson's initial observation it did seem like in parts of your briefing and parts of your argument you were suggesting that the elongated body  at least the head portion of the elongated body is less flexible than the handle portion of the flexible body for the accused product and that could only be because that argument is premised on the white material being included in your view of what the head portion of the elongated body is so i think i can understand judge brogdon confusion here  given that what you're saying in different parts of your brief seem to be inconsistent with each other could you clarify that i see what you're saying but  thinking out of the the claim as a practical matter that well and talking about the head portion being less bending than the handle portion that would be a result of the claim given that there's no requirement that the head is multitude disposed in the head portion of the handle and that it's a more rigid material so i think we can talk about both things and trying to prove the claim and i guess that's part maybe partly why we're here and that to to prove that their long good body is flexible throughout it's easy to prove that the and apportion  flexible in the head portion and you say for example in reply brief page fifteen you say the elongated body of the accused product is less flexible in the head portion than in the handle portion because the less flexible head is within the head portion if if what you're saying is that it's it is the on good body is less flexible and then as judged and says that can only be because the elongated body includes the head and no i think we get to this point by applying the claim to the cues product which is specific and it's true that in the accused product the head portion is less flexible than an apple for sure but we're not talking about an issue of clean construction includes the head in the head portion as a matter of claim construction yes i don't well as i read it the term flexible throughout doesn't go into that level of detail it just says that the bonded body must be flexible throughout and so if an edge of it is is much more flexible than another inch of it i don't think it matters so long as they flex council i think for me this judge more i think for me  confusion seems to be arising because the district court treated in application to the accused product treated this claim as requiring flexibility throughout one the head is inside the a long dated body and that's not what the claim seems to require on its face and i think your argument is consistent with that but then i think you kind of were you may be sort of arguing in the alternative that even if the claim required flexibility along the entire along gated body even after the white head is inserted and we have proof that should have precluded summary judgment even if that is the right claim construction which you yourself do not agree it is but even if it is the right claim construction we have proof that still shouldn't preclude a summary judgment on that does that sound consistent with what you're arguing yes we have proof on both of those  body is flexible throughout and as the court said in the claim construction order at appendix six hundred and seventy four dollars at under the head or common words as the court was saying this has plain ordinary meaning the court said that the  st material and then footprints to the elongated body must be flexible throughout so we think that's consistent with our st argument that if all the arch material is flexible the the body is flexible throughout and so we're trying to address supply in an ordinary meaning a flexible throughout in both cases that the material itself is flexible and also that the head portion and they had a portion men and therefore it's flexible throughout though things are true that things are evidence of infringement and both things are consistent with the claim construction if you know maybe the difference is the hypothetical of looking at the claim and imagining all possibilities versus the application of the claim to the accused product which gets into this kind of seeming difference or inconsistency between saying we proved it because the flexible to material is flexible throughout and i mean the orange materials flexible throughout one disputes that and also we proved it because we showed the brush bending including the head portion venting is just less than the handle and yes and doing that where we acknowledge that an set that st material sexual throughout and also smith the expert and bending the brush forward towards the brussels bristles and having the image that she labels as less spending and more of an ing a he said  hat because the whitehead circuit car judge can i just just as a baseline do we all agreed that the orange material shown in the photograph of your accused toothbrush is flexible throughout just the orange material alone yes you're on it ok so yes so your argument is so your your argument necessarily the clean structure which appears to set out and separate three different elements of the claim toothbrush claim limitation one being an  ngated body being flexible throughout limitation to being a head comprised of a nd different material and then finally three limitations three a plurality of bristles extending from the head into the head and head into a long good body but why would it necessarily be wrong to read and understand and construe the claim as the head being a separate and distinct component from the elong body and it is only the long gated body itself alone in isolation that has to be flexible throughout honor because to the way the claim is written and i agree that there are multiple elements but and then the elements are related based the the if you look at the language of claim one where a talks about repeat it here where it essentially the applicant essentially made the argument that it is very critical for this utility of this invention to work for this invention to worry that the head needs permanently fixed to the head portion of the elongated body and then the applicant used very strong language states then vention is directed to a toothbrush where the handle and the head are permanently why mr karr my arm is permanently attached to my torso does that mean when i say torso that necessarily includes my arm that is correct but then we wouldn't get confused and say that torso necessarily now encompasses my arm given that the arm and torso are somehow include the head we would have to reverse would we not he long gave his body is just the orange substance distinct from the head we would have to reverse correct getting by the term elongated body includes only the for purposes that we've been discussing the orange substance and does not include the white less flexible material because again there are two different they are elements that are separate and both claim to want to claim eleven because the limitation that a long awaited body being flexible different limitation from the relative rigidity of the material that makes the head and that makes the body and for accused products to be shown to infringe  head does not need to be flexible just the elongated body doesn't that require reversal in this case apologize you know i did not mean to give a nonsensical answer i guess i'm just having a hard time understanding you know the clean construction argument here that we i i apologize i am not able to definitely say that because if the if you conclude that the head is not hard the look did not make any determination whether the head is part of a long gated body are not except it seems to me at least that it was implicit and the district court's ruling that because the district court found that the elongated body was not flexible throughout that was predicated on the fact that there was less or in the district court's view no construction implicit construction perhaps of the long gated body as including the head that is correct i guess my question is if he's wrong about that implicit construction don't we need to for it has hardness limitation as to the head material yes there are seventy five to about ninety five on the shore a scale you familiar with the it's going to make the head portion and floppy to be pretty inflexible wouldn't once we're talking about hardness on the scale of the nine in our five to ninety five and so yes those are hard materials so your honor if i understand you correctly you're saying that if that durometer hardness if da were to be  touch more it's kind of you say that's the material that needs to be the st material because your argument is the along you the body has to be flexible throughout even when you insert into it a head which has a ninety five s a scale hardness so you're the one making the argument that the entire body need to be flexible even when something that hard stuff until it you know what their way is and there are different ways though of understanding how claim for interact with claim one and that would be to further confirm that the flexible limitation is really just directed to the long gated body by itself in isolation without having the head installed into it and then in the head that actually according to claim for at least i can be quite hard quite rigid quite inflexible and that's why you know that even the product the with the way it's made that the head portion which essentially our position includes the head which is permanently fixed to the head of the body an opposition and make the cell a text showing that it's required to make and yet loops by virtue of your brief request for sue sponte summary judgment has been put in the position of having to scramble to respond to that point in a reply which as i understand was limited and district practice to three pages why didn't you file across motion for summary judgment which would have given how they failed to or simply even point out that there is no not enough evidence that that they did that that they can be any infringement under a reasonable theory standard and claim four and claim thirteen it's the one that we asserted that it's consistent with the construction of flexible throughout if if you apply that to just the body and that's consistent with the way the claim is written and then procedurally and i order saying is it flex ben twist or anything but by that time we'd already submitted evidence that it does and it does and we submitted more evidence that it was having the expert you know put a measurement device to show that evidence we already submitted shows that there is a deflection and they had a portion and you know why are we trying to prove flexibility throughout by by referring to the head per the head at all well as a practical matter were applying the claims to the accused product so you hold in your hands need twisted or you put it in a vise and you twist it and so but not having a chance to even know what the court did to examine this and knowing or at least believing what we see with our own eyes that the head portion does then we don't see how that could be procedurally appropriate we don't see how that that could be you know an abuse of discretion i don't like to use that term regarding annie one but it was you know unreasonable to ignore a picture of the head portion being bent my fingers it clearly is flexible