morning we're very pleased this morning to have with us judge marilyn off from the district court the united states district court in the southern district of california and was sitting by eighty degrees out of phase they are mirror images of each other not the offset cannot hers the chuang prefer and secondly courtis connects its expansion struts these circular are not by using joining struts and corners which is the choice that charing made for those reasons as well demonstrate the infringement verdict was wrong it seems for infringement verdict was right however was disclosed even prosecution is correct i don't see the reference the terminology in the prosecution's history but i do see something that might be a disclaimer but i must say i'm very confused by as in everything with this path did require some work to work through the language but the sentence says additionally the stent being the stamp of the invention has a has a first expansion str joining the strike now that's just having one pair that's joined together first right next to a second strike an adjoining strike within the last for a the first paragraph than one hundred eighty degree of orientation because that's where the struts are aligned could you reconcile it by saying each one has a different numbering system to begin with claim one in claim twenty three so that under the ordinary meaning of the language that when you added the wherry and you were talking about the broad construct not necessarily talking about that particular numbering scheme because you started with two different numbering i think that's the clue to the right way of considering the pattern because i think that we're in clause makes no sense in the context of playing twenty three in the context of playing twenty three that talks about an offset of a second of a first strike of a second there there isn't the first right of the second so how do you stop to me there are two ways to solve one is that the prosecution history see what was going on to see the when the patentee explained this problem to the examiner he only used the language of anyone in describing the solution that he made of clickable to both claims and if you do that then you construe claim twenty three just like play one which require offsets and to exclude hundred eighty degree out of phase designs because the op said connector offset between the first strike of the  that your honor may please the court my name is john to maris i'm here for boston scientific to pick up on your honors question and your honors insight i think the fundamental problem with course is position in this case is they admit that the plain and simple words in claim twenty three and add in a meaning that comes from nowhere this hundred eighty degree offset is nowhere in the patent it's nowhere in the claim there's nowhere in the prosecution history you're trying to force new the claim but when you read the plain words of claim twenty three it's perfectly clear what it's saying what it's saying is that you can see this on page sixty four that the expansion struts are offset in the structure it doesn't mean the slots are offset there is a difference in this prosecution history as one of the things that courts ignores there's a difference in the prosecution history between the slots being offset and the trucks being offset and you're going to sue i don't understand what the what you mean it's what's the slots are the the opening that is made in between the struts those are called the loop slots in the pattern specification and you can see that there's a difference if you look at the prosecution history on a seven hundred thirty where the patent office tuesday i don't understand because the distinction here those and distinguish based on slots in this two which is based on the longitudinal asian ship of the struts exactly the point i'm making your honor which is the claim talks claim twenty three it has offsets trucks but they're different struts because the numbering scheme is different and you can see that as i said on page sixty four of our brief because that the first expansive strike and this and the first expensive chart in the two different columns are off those spaces and that's not what the claims getting at and that's why i was your friend if you look at the prosecution history of the double padding ejection the pan examiner makes a distinction between offsets slots and offset struts and he says there are those are two different concepts in the in the past you can see that as i said on a seven hundred thirty so what courts are trying to do is they're taking this concept of one hundred eighty degree offsets which appears nowhere in the past press occasion no where in the claims and no where in the prosecutions or even on the page they cite that language that your honor is referring to hurry up and characterize the invention he's just repeating the client she's not saying anything to characterize it about one hundred eighty degree so i don't axis with the second expansion strike the second home but the that's not what the claim language says it's what the claim language says when you look at the numbering scheme of claim twenty three the number of scheme of claim twenty three has expansion struck pairs and it clearly tells you which struts are in which pair is what she's saying is that the second expansion struck in the second column is the first run of the  of the second pair exactly and that frankly when you read the claim that's the plain clear meaning of those words i know it's a complicated claim but when you read it that is the plain language so what the judge did is interpreted the claim according to the plain language that as it's written in the claim what curtis wants to do is take that where in their proposed construction below was quote this claim language excludes stance to have one hundred eighty degrees out of phase rings close quote that was the proposed construction it's not even a construction of those words it's an exclusionary construction which this court case law says is you know an inappropriate way to go about how different my how does this language distinguish zoom to distinguish it in two different ways  you let me start briefly with the great patent for a six pack and i'll start with the construction of the term continuous wave in this court's decision in zero two micro the court made clear that the parties  claim term the district court has a duty to resolve the term both parties in this case to new assuage if we propose the continuous way be a way for that uniformly progress through the medium to propose that it had to have certain crest and trough attributes between different lengths the district court did not resolve that conflict in fact didn't construe continuous wave at all and just repeated continuous wave to the jury and the jury instructions c pounding that error of not concealing the term as as it was a court's duty to do the court then let the parties present to the jury the disputed claim terms so we presented to the jury the prosecution disclaimer arguments we show the prosecution were presented to the jury and the problem would be getting this was not only for the reasons you know to micro which is that the court has a duty to resolve that but here it was more particularly troubling because wave is a common everyday term that the jurors when they came into court probably had their own preconceived notions of what a wave mean meant in court as played on that during the trial which created a lot of prejudice for boston scientific orders showed it demonstrative all of a breaking surfing wave in hawaii they colored in the stand they color the metal in the air space making a undulating wave appearance which was not really present so they're playing into the jury's preconceived notion of what that common word means but if you look at the way the word is used in the pan specification in the claims in the prosecution's history it's used in the mathematical a ocean wave is what comes before the break in the break is at the end so they've taken a term that the jury may have had their own preconceived notion of they played into that preconceived notion and created an outcome that is you know frankly very different from what the plan is if that the product is made use or sold in the united states is not a matter of subject matter jurisdiction it's a matter of the merits that jame all should have been granted and that texas law should've been dismissed from the case with prejudice that was clear there is on the first set of claims where the court found issue preclusion because there had been an earlier trial on a different product where the monographs were not raised and then in that so we have the second trial then on the express products in the court found issue preclusion issue preclusion under the third circuit law requires the issue have been tried actually tried in the prior proceeded so we're talking about a second proceeding of a different product and different art and we got issue precluded when it wasn't even tried in the first case that's a clear error of law it's applying blundered in the reverse blunder tom says if you lose on validity you don't get to retry validity it doesn't say if you win on where two companies that are in the business of making these products those contracts said plainly and course agrees with this that the monographs would not be kept confidential and there was no duty not to share the copy them the inventor self serving trial testimony over the written express contracts that he himself signed and said these things were confidential that's inner order and then she summary judgment against boston scientific that's the the reverse of the standard exist it has no numbering system but you can apply the numbers using that using the as a guide you can walk through in class and give it numbers which is incapacity but the i think mr maris just agreed with something important that the amendment in fact distinguishes over and they've denied that previously the amendment does distinguish over and pick i think as to claim one there's never been a dispute that it does the problem is to claim twenty three as construed by the district court and shown on page forty four of our blue book for claim twenty three using its numbering system in the district courts claim construction claim twenty three reads one in costs and that's the problem you agree the claim one does not meet on interesting claim one yes because of the w clause claim one does not read on from cost that was the point of the amendment and it works and it works on claim twenty three if you give it the same meaning as in claim one if you do what the district court does you throw out the carcass of the try to understand this if you what you're saying is if if you give the where in clause in the clink twenty three you read it using the numbering system of claim you want then it distinguishes use the numbering system of claim want and claim twenty three just for the purpose of the where employers yes they were that's the only way to make sense of this confusing history in light of the i would say the clear intent of both the examiner and janke to treat a pair must be offset on it to the offset from the first right in the first so these are these are aligned not offset the offset you would have to have a jangling design structure that's what the offsets doing in the way are in clause and that's what makes this design different from this design i don't think there's any dispute at trial that if the offset of claim one was p they had the power to try validity of claim while they waived it why did they waive it because it didn't make any sense to try validity on claim one when they couldn't challenge claim twenty three would be a waste of trial time so they made the wise strategic unfair to the process it's unfair to the litigants we were in court trying to decide what case was being tried they had the opportunity to try claim one i would say at the worst if they had any  order on eighty five paragraphs to oh it is motion for summary judgment that the asserted claims of the seven six two pattern are not invalid is granted as to the asserted claim as being invalidated by the monographs that is a judicial order that we're not allowed to pursue validity on the monographs that's what the district court found there was no mistaking it so we were precluded from there are two sets of claims three claim twenty three were it doesn't belong the issue here for infringement in validity is what does claim thirty six it depends on twenty three what does that mean in the words that are there in the court's construction of the plain words