tiriel so the contrary ruling by the district court should be reversed the court used flawed analysis and also violated the basic rule that inference a should be drawn in favor of the not moving party here hayward the evidence strongly supported hayward's position that there was adequate indeed full disclosure of the two sheet of claims forty three to forty five and for the two just was described in the eight material that's in these originally filed claims in this application all of limited themselves to stainless to t l c steel tube sheets hundreds or everyone of the originally filed claims in this application were limited not just to stainless steel and i do not remembering it right i don't think that's correct your honor i think there are some claims that do limited to stainless steel and there are other claims that don't include regionally filed claims associated with this application was when demanded then it was renewed in the zero seventy seven application which emerged as you know four pads so there was no no patents that came out of the parent application so if you look at them together you see  material in the zero seven seven application but figure two in the original was in the six ninety two and repeated verbatim in the zero seventy seven and that's the one that i quoted that described the to terms of its function of collecting them into a unified structure so that that material is carried forth for bait and provides disclosure of two sheets made of whatever material would be mean i know that the abstract doesn't mean much but when you when you look at it and the very first place you see anything in this pattern talks about how important persian resistance is and then it's repeated over and over and over and over i don't know how you can this is a path and where you have some claims directed to the fukushima some directed to the burner assembly some directed to the are there many places where it uses the word tube sheet and doesn't include the word stainless steel  corrosion resistance whether it uses the word heat words heat exchanger your honor because i don't i'm not talking about the heat exchanger though where i mean sure but that issue is whether that tube sheet it fell has to be stainless steel or corrosion  e right and i think your honor that the heat exchanger is the structure that includes the tube sheet and certainly any person of skill in the art understood that and we present it we have to my question though my question is are there six the line thirty four you have the sentence a pair of n plates seventy two seventy four are sided welded or otherwise to fix it watertight fashion  it's mentioned one time or maybe a couple times when it's describing one specific example to preferred embodiment but almost every single time it uses the word tube she'd hear it talks about it being a stainless steel tube she starting with the abstract where it talks about the importance of the corrosion resistance and throughout yes there are you can pull out some isolated incident and where it's discussing other aspects of how the two cheated form in the like but i don't see i mean when you have what's the standard here i mean isn't it this pattern does not cover or can it say can every day basically every single discussion be directed at a specific more narrow claim term  if it if throughout this let's let's assume there are any other references you found a few but there were references where they used to cheat without the word stainless steel every time they used the word too cheap they modified it by stainless steel but they didn't say this doesn't cover or this isn't limited to stainless steel we do have a disclaimer there i think that would be a tougher case for us your honor but i think there is disclosure that that contradicts importance of corrosion resistance that seems to be a pretty important part of this invention and i don't see anything but straight references to non corrosion resistance material doesn't that need a disclaimer sander your honor i but i believe it does not the plastic head or plastic headers had not been used up to that point over a hundred years but it's repeatedly talks about the fact that the corrosion resistance is really important because we're talking about pool water i mean i'll sometimes my problem is and this goes back to my original question is is if i were to construe this claim under philips i would say that the claim requires corrosion resistance so then you've got a nine infringement but you still got a valid patent the problem is you asked for a different claim construction that i think really makes sense and that's not an issue before us so now you've got you've got to put your patent at risk respect for your honor we disagree we think that the disclosure is there to support it under the written description standard that corrosion resistance should not be read into the claims at issue here there's one claim that call for corrosion resistance to sheet that's plain forty six and under the doct and claims that cover plastic headers and the combination claims that we're looking at here forty three to forty five forty seven all covered corrosion not sorry i'll cover a plastic header on a  thing you made up out of but if you didn't claim put that in your specifications then you don't get it by adding new broader claims later on i mean the original claims that the poor associated with this patent did use stainless well every figure out basically a along a spectrum what kinds of things would amount to disclaimer so certainly i would think in order to be reasonable you would agree that if the specification said make this out of st steel any other metal won't work because it'll be too heavy and it will corrode period that's even if the claimed lead it later just said to sheet and didn't say stainless steel with that amount to a disclaimer in your mind are believe even though it's not saying don't make it out of this that or the other it's an implicit disclaimer because it's tell you affirmatively to do something and saying and it's conveying to the world this is the scope of my invention this is i'm aware that you could make it out of other materials it's not a matter of being uninformed it's a matter of carving them out for a specific reason and the opposite end of that spectrum is just repeatedly talking about prefer really using stainless steel or prefer a bully using a corrosive resistant material without for example disparaging non corrosive or resistant materials i'm not none of these are your case i'm trying to set out two opposite ends of the spectrum and then like kind of cabin in on your facts and see which end there with so i just want you to know where i'm going and so you don't fight me too much on what i think are opposite ends of the spectrum tree so the other opposite and we would be this example right where just because you refer to something as a stainless steel tube sheep if you never explain why the stainless deals is important and should be preferred over other materials disparage other things that when i'm out to a disclaimer in your view right forever yes and so what this case is there are definitely cases where we've had where we've said you don't need magic language you don't need to say no disclaimer but usually there's something more than just using it repeatedly in the spec like there's something like the present invention or language that really makes it clear to the world is your argument that there isn't any such language as that presented and approved by the head examiner then i think we we do have support but the problem is i don't see that other disclosure in this best vacation i think that my colleagues asked you to identify where in the  always to keep want to wait so that's a continuation of that same discussion and i think this isn't just a matter of if they threw in stainless steel he explains this inventor explains all the reasons why stainless steel is important it's lighter weight and he stresses how lightweight it is you know it's i mean great the plastic might be even lighter weight but he then disparages plastic a little bit in other places but for different parts not to keep taking rusting out but i guess i guess i'm struggling with unifying the tubes into an integrated assembly that tell the say if there is no restriction on the material they are the first time that there is any mention of a tube and i don't understand that i mean yes when you're talking about the the descriptions of stuff in the summary of the invention paragraph in column three mental or at least before the column six and it says stainless steel your honor you are correct in the summary of the invention but when this had this talk is describing in detail what it's disclosing the first reference preference language more naturally refers to the wit and not to the material letter to cheat so i don't mean i don't think that supports you either everything see or talks about how important corrosion resistance is so i don't know how you can say that you've invented something without a corrosion resistant element just because you have one statement where it doesn't actually mention doesn't mention corrosive material it just doesn't mention material at all it doesn't mention material at all and that leaves it to the person of skill in the art who's been making these devices out of cast iron which the patent says is not the right resistance and out of other metals which arguably are corrosion resistance if they serve a purpose for the lifetime of the product so we think it is disposed there and your honor with respect you actually arguing for not infringement purposes that yours doesn't infringe because it corrodes and what the heck can you do that as a matter of business churchmen how in the world can you argue for not infringe mid our public doesn't infringe because it's and these heat exchanger to come around in the go through the holes they go right through the tootsie so the water is within those two years and not within the it doesn't pass through the tube she bit her lip doesn't on the issue of not infringement that we sort of as an alternative ground based on the in communication with language as well you're right so if you have a tootsie that's like this ok and you've got a and largely can come up and then engage the two sheep and attach to it here so that the water can go through that hole and into the manifold out of the other side and it essential elements in quotes we use that term may have been a little unclear i don't the issue as when you get into written description the cases of course are you look at the four corners you take the document that was filed to match it up was with here what was later claimed in the make a determination was their possession ok area it says possession within the four corners so and if you are this court's pasing technologies case honeywell simon and others we've cited the president mention language when it's set up just like that it does fit creates with pacing technologies called a quote unquote unmistakable disclaimer that here in the eight zero four case take those seven seven application this is a disclaimer and if you're right then why isn't the problem i mean i don't see how this fails written description it's just that the claims are not properly construed and we claim constructions a question of law parties can't stipulate to when we you know have to be the predicates decided before if originally or validity so i mean it's kind of like you're making a case for yourself in a case against yourself at the same time because i don't see how you jump to written description without first construing the claims and if you're right about the disclaimer then the claims are narrow this your honor was how the claim for construed in the infringement scenario but what's bothering me is if this were a case of statutory interpretation they may be asking us to take a broader view of the statute because that's what they need in order to prevail in whatever kind of claim they've raised but we're not necessarily going to accept that broad view of the statute if it's incorrect and especially if it would result list actually being unconstitutional for example so why ought i to accept a broad but improper view of the cla that result in their invalidity because that's the that's the panties decision to assert them of that scope and it was the party's decisions during the lawsuit to litigate them of that sc and there was three years of litigation over that scope all the way through summary judgment where judge will made very specific findings on both the written description as well as the invalidity proxy so why didn't you argue for a narrow claim construction that you were you were more interested in knocking out the patent then and in fine and having a finding of not infringement well you know if we had done that your honor i would have been accused of reading limitations from specification of the clay it's always a two edged sword so you've got in claim forty three and forty seven the independent claim you've just got the two st two should unrestricted as to material if we go and argue over your honor that should be construed really narrowly ok the specification is all about stainless steel corrosion resistance ok what we're going to hear back is you're reading limitations from the spec into the claims and you've got claim differentiation with claim forty six which specifically calls out corrosion resistance so that's where it is there's no if you do things like i understand rock and a hard place i get it but it seems like the best way to do these things is argue in the alternative you know for us to defend these claims are narrowed and should be construed as x if you're not going to consumes x i'm going to constrain broader than the spec doesn't support it because you know there's a lot of cancer claim construction and among them are construe a claim so as to assure its validity if there are multiple possible construction send your whole argument is there's a disclaimer in the spec so it's hard not to certainly be awfully tempted to reconstruct the claim appropriately now would still result in your not infringement if we agree with you on claim forty six because this claim would devolve into an identical scope right it could well under your hypothetical yes it's it but assuming we can't get them to claim construction because it's not before some appeal right then fifty four the problems and disadvantages associated with conventional the voices and methods etc are overcome by quote the present invention which includes and it goes on  your brief but i do want to point out because it did jump out to be in bother me in this exact point as you put president mention dot dot dot and then that the rest of that other sentence about to she and i found that to be a disingenuous and overbroad claim on your part because you did it in a way that implied it was all part of the same sentence please don't do that again in the future because you've got a very credible position and you don't want to undermine the credibility of your own position by doing something over reaching  that again the heavy summary of the invention your honor and the next sentence talks about the present invention and our position that you just referenced was intended to encompass the entire paragraph which is paragraph as the president ventured and then you're going to tell me i should read this patent is limited to a print header which is plastic or your header which is plastic they have to be removable e attached do you understand i mean the difficulty with taking a president mention language that appears in one sentence and then applying it to every aspect of the entire paragraph is that would amount to an awful lot of disclaimer suddenly and i don't know if that breach again we think that in this in the summary staying still to choose a person of ordinary scania reading that paragraph and come away that that is the only possible material later references to and you description it may say two shades referring to the figure two by the number ok but for example we're as mr bromberg pointed to column eight in the middle line twenty we respectfully submit there's no doubt at all that the specification as a whole discloses probably stainless steel for the two sheets and i would note that it went column nine actually better for you yeah and i'm working my way there  when i was asked to show specifically where we we contend the disclaimer comes from in column nine then after that discussion in the bottom of eight lines eighteen those couple sentences the stainless steel sheet metal to sheet is used in combination with expanded copper or stable steel to two sheets and plastic headers uneconomical corrosion resistant heat exchange r is produced and the next sentence goes on to describe the advantages of avoiding stains stain water and mineral deposits in the pool water we also note as judge shoes pointed out the original claims filed with the zero seven seven were all of that stainless steel two sheets the court in gentry gallery specifically gave that fact some weight in the overall ca hundred seventy three four seventy four f second six seventy one makes clear that merely characterizing an application as a c i p doesn't serve to incorporate the parents beer reference to a prior application doesn't allow you to rely on the prior application for disclosures for and  he would also argue that certain claims like claims twenty two to forty two and mr bromberg referenced column thirteen even his argument those claims didn't exist when the  seven was filed so they simply don't count in determining whether there's really scripture i think we have your argument are there any other points you want to touch on that you feel like you haven't had an opportunity to do because you let him go over some willing to be generous necessary for them and really the invention here is a series of inventions the plastic header is very important corrosion resistant to shade this very important you don't have to claim all of them a one claim in order to have a viable claim that is fully supported by the specification and on the issue of corrosion resistant your honour's  the there was no claim construction of that term it just didn't come up the we submitted a declaration from dr clark an expert in this field for forty years who has seen  structures in france says and fluid heaters and what have you that was so corroded that they crumbled into dust and he thought that something's that does not have that experience where the component lasts for the lifetime of the product even though it has some surface rust still meets the definition of corrosion confidence but in caliber nine it talks about the importance of corrosion resistance being that that that water is not  colored that's not the same as completely crumbling into dust that is the same as rust right well your honor i think i think that it depends on the structure of the through sheet as mr baldwin was explaining you're going to have a wet two sheet environment in a dry two sheet environment where you don't permit the water to get in touch with the tube sheet metal and therefore the rust will not get into the water so that is  aspect of the invention but that's not what column one talks about column one talks about two sheets that are corrosion resistance so that even when they go through the water goes through them you're not going to discolor the pool  that maybe your honor but it also talks about the configuration with the alternative to the sheet of figure seven where you have the nipples and you put the tubes through the tubes are always made of copper almost always made of copper put forward as we came into but i think we have your argument sorry to cut you off but we have to move on for today the case is taken under submission and i thank both council for their argument and you don't need to switch sides i hope