directly to claim construction we take the position that the trial court made a mistake with claim construction and came up with an overly narrow definition of the phrase closely spaced saying that the deed there were so close together that you couldn't they were grouped at this dearth and within the group they were so close together that you could put another ele the between them all council seem to be agreed that that definition finds absolutely no support in the written description and it really finds no support in the prosecution history how much space is closely spaced well if it seems to derive from the event where that was put in the play was put in the claim to distinguish it from the bit in the schmidt pat is interesting from the standpoint that it has three widely spaced halogen lamps that are intended to work as little spotlights and the writer of the schmidt specifications says i do not want this to emulate fluorescent tube like lighting disparaged fluorescent tube like light he said it was brought in flat and it didn't give my jewelry the sparkle in apart and indeed they are about six inches from the targets that are to be illuminated so we'll see if we accept that so use any of said schmidt it's white space so we say six and just as widely spaced how do what closely spaced how do we get down to closely spaced i think that is the ultimate question the best testimony on this came from our expert mr roberts dr roberts and he said with how many lumens do we do we need to to replace a fluorescent tube like if if this light leadership in the dark isn't a replacement for a fluorescent tube it isn't worth anything it'll never sell it's not a commercial device metric right it is indefinite in terms of an actual metric but if if we must apply a metric to it it's certainly less than six inches it's probably i think a key here is how the examiner interpreted it that he cited and applied to pieces of prior art that had spacing between the lights that were about an inch to inch and the half so he thought that was closely spaced so i still am looking for an answer if you say if we must apply a metric let's assume we must apply a metric you know what's the matter it's probably going to be in the couple of minutes range matches so that's your definition of what claim construction that is probably in the several entrain you don't think that's indefinite i think it is intentionally indefinite in terms of metrics because you've got to start let's them over also notice that it's not a problem for you if it's me whether it's intentionally indefinite or not you've got  we've got to construe the claim in a way that gives the public notices to what's and brand what's excluded and what's not well and and perhaps more importantly to to provide a basis for a jury instruction and i think the jury could be adequately instructed to say look this spacing in combination with the fact that there's a lens over the this thing that has a certain amount of light scattering effect is such that the l e d's no longer function went to six inches apart yes a specifics a gave us a specific measurement and now to define the invention you're abandoning the very metric you used to distinguish yourself isn't that a bit of a problem well it is in this argument only because i'm going back and forth between what i see and what the attorney who prosecuted the application said to the examiner if if we're looking at this from the standpoint of a prosecution  disclaimer looking at this in a certain point of a person of skill and they are reading the pat now they're reading that happened what in that tells them what defendant's encouragement he went right to the drawings and well i'm just going to go by the drawing it looks to me like the group within the groups looks like they're too close together to put another one between them never mind the fact that there is plenty or room on the circuit determination was that there's no ordinary meat and all you know my reading was just grasping at straws that he's just looking for anything in the specification that could give him some meaning i agree that was his claim construction was intended to preserve the liberty now i think we can all question whether that's the right approach to claim construction but he did mention the fact that nevertheless he ended up drawing claims to exactly what was shown in the drawing without any adequate basis in the prosecution history there never was a disclaimer that you lead us in that direction but i just ask if we were to the only person of ordinary skill in the art to provide any guidance to the court you see for before you run a time if i can just ask you one question here about the second issue  yes it strikes me that you have a good argument for the stop of those apply here because he didn't prevail on anything but on the other pm if i look at the scheduling order and what you said in response to the scheduling order in describing what was infringement you seem to describe this is thirty six separate these you didn't describe the theory that you're now or to killing him so why shouldn't your failure to articulate that theory in response to the scheduling or boring now well i don't think claim construction should be wrapped around infringement contentions i think it's the other way around and why isn't represented that the schedule you were required to to set forth your infringement contention and i did it and in setting for setting forth you describe it as thirty six l e d s absolutely correct and i was wrong when i did that and i maintain it w to correct the schedule in response to the scheduling order i never got a chance the motion for summary judgment came hot on the heels of the of the order construing the plains that was my very first opportunity to revise my infringement contention and i did so with proof admissible proof that indeed what apparently we all thought were individual m p s were composites of six l e d s but did they have any doubt that the district i think it's conventional after a claim construction finding to take another look at the infringement contentions to see if they need to be adjusted that's typical and that certainly is what's needed in this case isn't it perfectly plain that he would have if we set that aside that he would find that the scheduling order was a bar if you're going to if you're going to hold me to my original eroni asst claim construction then he may use that as a basis for doing it but i think it would be proper to do so because it stands in the way of the truth getting function this business of these l e d s actually being six l e d s is not a theory it's a physical fact and the purpose of this trial if i get to a trial is to get at the truth and that happens to be the truth it's ironic that a attention in the oral argument at the claim in the market and here i said oh by the way judge we have discover that what we thought were individual l e d s are actually composites of six l e d s i gave him every chance and nobody contradicted me i gave him every chance in the world to take that into account and he came up this is the irony of the case you came up with a claim construction that is a perfect fit to the accused device for infringement purposes and the irony is i'm standing here with the telling you that a claim construction that benefits me in my infringement case is erroneous so i can live with being stuck with that claim construction if you reverse the judicial stop because now infringement is a slam dunk and he held that that's what validates the patent on top of it so i'm sitting pretty if you if you affirm the claim construction but reverse judicial stoppel it almost sounds like the judge is saying doggone it i came up with a claim construction that met you were supposed to young and now you're telling me you win and that's why i can't let you do that that's not the right approach to two lawsuits for patent for interim that's wrong from the get go evan anything more  thank you ron it may please the court my name is brett fawley i represent dynamics i like to go back streets quarterly what the district courts just wrong on judicial stop and write that in order under the supreme court authority you have to prevail on sample well as i said i think that's our weakest argument and i think that focusing on that really misses the point of this entire exercise and i think well you're going to lose if we go back on  the district court claim construction there are six l e d s closely spaced in those groups and the the definition of what an elderly dia's i believe is not an issue of fact but rather an issue of comprised of these six little chips and we haven't had any argument we haven't had a expert testimony about what those little guys are and whether they constitute an l e d so i think if we went back to the district court for a trial we would have a claim construction on what is an l e d in the context of this patent and in that case we would argue that the district court properly administered its own docket and its case management order and precluded well why didn't the district court err on the claim construction to the i think the district court did err on the claim construction in the sense that our primary argument was and is that this patent has absolutely no written descriptions or for the claim closely  spaced as closely spaced wasn't in the patent when we started we all know that that's right so we can read the patent specification and we can and it is replete with references to conventional fluorescent light tube sock ets light arrays conventional lighting don't you have enough there for one of skill in the art to figure out how close i have to put these to get conventional fluorescent lighting kno you can't beat i think i can do it i'll set him up there and give me ten minutes all trying one inch apart and then a half inch apart and then three inches apart and eventually also you know that's  conventional lighting i'll take that one and i'm not even an expert i've been an expert could do it the first time couldn't say if the patent had a written description well it does it's got a written description and it tells you over and over and over again you are to get conventional for fluorescent lighting with clearer conventional fluorescent lighting fixtures and a conventional fluorescent lighting result that isn't hard to figure  sock yes that's two twenty seven twenty eight twenty nine i agree with that but that doesn't mean that the light that would be emanated from that socket would necessarily be the invention that they claim the best example of that is the schmidt can you replacing a conventional fluorescent light to been getting the same result this isn't it this isn't rocket science it doesn't but it's a pretty cool idea if you know save amended in we know that but we can't rely on an amendment to a patent examiner didn't have any trouble figuring it out he knew exactly what if was but that the inventor house to possess the invent limitation but that's irrelevant this comes later in order to help people understand and these people are not you and me they're people of skill in the art and this isn't hard to understand even for you and i is it  your kind of manufacturing and argument which i understand you have to do and so you find some terms and say well that isn't defined you're telling me ellie d is a defined which is about as  hard to understand as your current argument but under section one twelve paragraph one the inventor must be in possession of and describe the invention in the application that is absent from this pat dr roberts he understood it and what he said was that you could have an l e d replacement too with two only d's spaced forty eight inches apart and still be closely spaced if that replacement light would replicate the light from a fluorescent tube in whatever particular application you wanted that is incredible testimony d s extending between the opposite ends of the ball portion which is shown by example in athens figures one in two a critical feature of schmidt is the existence of space the part of light sources as exhibited by the presence of this element in each claim of the patent the specification explains that adequate separation assures maximum reflected dangles with respect to the object being displayed for example figure yes my point is that through prosecution history and through limiting the claim to include the term closely spaced one cannot provide the initial written description that was required in the application is filed and there's nothing in the application that i want to thought you would be or even in the prosecution histories of reference to figures one and two in that that what the applicant meant by closely spaced if if we have to come up with a claim construction then i think the figures one two and three are the only thing that provide any basis for any  ourselves to the preferred body meant so we would also understand that one of skill in the art could look at those preferred environments and modify them slightly to reach the same result right no doubt then you're right at the claim construction difference that we're dealing with they can modify it they could be spaced apart and pending upon relative to the power of the l e d s we understand they might be spaced apart half an inch they might be spaced apart quarter of an inch the might be spaced apart an inch but they'd be squashed lee spaced did have to be much less than schmidt but it would have to replicate the results of a conventional fluorescent light right i don't replacing we've gone through the figures one and two we've gone through the prosecution history and then we understand as you've just admitted that one of skill in the art can modify that to reach the same results there's nothing indefinite here and it's pretty clear that you've got some troubles both with the claim construction and clearly with the estoppel it's it's clearly an indefinite don't need a hard and fast metric meaning you need something understood by one of skill in the art in order to enable it and we've just gone through how you can do that three or four different ways except they only do exactly what shown in the preferred embodiment then you can modify it a little bit if you have larger or smaller l e d's and i'm not an expert what is the light that's being replaced if it's a replacement vention will fluorescent lighting too and that's phrases in here at least a dozen times is what application and application for a large room over a desk in a refrigerator in a in a so now you've got precisely the reason that you can't put eight inch metric on it right because it always appears in different applications if it was a fluorescent light in this room you would replicate the fluorescent light in this room if it's a smaller room you'll have a different fluorescent lighting and you'll have a slightly different setting won't you this is just like the ortho chair case where the invention was putting a wheelchair into the front seat of a car and every car has a different size front seat so we said you couldn't have a metric for the size of that chair but one of skill and the art would certainly know how to modify it to fit and all small b l as opposed to a toyota and one of skill in the art and this this is easier technology than that by far one of skill in the arts going to know how to get a fluorescent light in this room as opposed to my closet in worth of kinetics the inventor describe pacifically how a person of ordinary skill in the art would be able to determine whether the chair could fit in the back of the vehicle provided specific places for measurement and dimensions  so it taught people to do to be able to decide whether know in this case far easier than north of kinetics if you don't find that section one pull paragraph one invalidity for lack of written description to support i think that the other problem is you advise us to rewrite the claim construction when we send it back infringement here you're asking us that's all we have to force the question of infringement that would clearly enlarge the judgement don't you need a cross a ploy something to allow us to do that no because as you said earlier today what's in front of this court is claim construction in her order to do claim construction you've got to determine whether or not the claim is capable of being construed and for the arguments or the reasons that we've given we don't believe that this  claim of closely spaced is capable of construction much less have written description support in the apple at most that leads you to say there's no one cringe met because the case plain is incapable of being construed not that we would say that the right you could say that the claims that include the term closely spaced are invalid for lack of written description support or indefinite will not without across a pee wee said that specifically and type district court's judgment on on summary judgment and for those reasons we asked that this court affirm the the summary judgment ruling below on any of those three grounds exemplars of closely spaced why isn't it appropriate for the district court based on the prosecution history to look to figures one and two to figure out what closely spaced means that's a good question the first question i had is whether she was talking about figures one into a schmidt or figures one and two of the pattern then i think her statement is ambiguous on that score but assuming it was the latter that does make figures one and two an example of what would be certainly considered closely spaced but it isn't necessarily a limiting example depending on what room you are in or what space you were lighting and how far away  geese are in a few things that want to skill in the art can quickly adjust but they have to adjust right exactly exactly and the another statement that was made in the prosecution history th circuitry to maintain the power as well so they know they're going to be adjusting and controlling things right sure and the fact that this is a replacement for a conventional for us too is right in the preamble of