of mediately surrounding in order to overcome it why is it necessarily wrong in light of the specification why from an objective standpoint forget about the reason the district court gave more incorporating the word immediately surrounding why is that construction wrong in light of the specification in the disclosure i don't think it's a special special occasion parsable such boards are bashing mode i don't see anything in the special that's what i don't understand refraction i think of as coming up with in much the way the dictionary definition explains and i don't know how you come up with it and not be immediately round from the bottom of the saw show that when the metal started were retracted by the way you are aware instead of going completely untrue they immediate shoe can only have one plane and so i'm troubled by your notion that the soul includes the cli's because then what is the plane of the soul is it what i would think of as the plane of the soul the bottom part of the shoe or is it the plane that were the cleat extends down to which wouldn't in my mind really be the plane of the soul so much as the plane of the tip of the cleat in your mind in light of that construction that be the flat portion or would it be the plane that missed you know sort of magically connects the tip of every one of the cleaners that recruits it would be the plane  portion of the show and was at the show has a ridge it would be the plane at the end of the bridge if the plane has nonstandard cleats extending outward very prominent then it would be the plane yosh and that showed as whether it's a clique or the flat sole of the of the shoes yet but the retraction has happened and the the district court found that the that we traction this patent it is clearly discussed as distinct from the sole like on column two of the patent lines fifty five to sixty and they talk about the plane of the  opposed to the plane of the sole of the shoe and i guess what i'm wondering is is it maybe there a problem with the notion that the soul includes the cleat because that's clearly while this report may have said that he gave it to one hand and took it away with the other because then he said it has to be within the immediately adjacent talk so i'm wondering if perhaps the problem is that the redundant so you you believe that when the court said that the soul includes the cleat that perhaps it should not have done that in light of the specification and that may have been an error of claim instruction about that i mean do you is there anywhere in the specification that would give one reason to believe that the soul includes the cleat is there anything in the specification because i see several places where cl have been issued his patent if that were indeed the case i have brought with me the examples that were before the court photographs which are in the appendix which show the cut all apollo the study is firmly embedded in the the issue with claim construction i don't feel i think is really a result of castors own advocacy below the trial court that you term cleped should be included in the definition of soul and as a result i do not see the term immediately surrounding of any real consequence relative to what the claim requires as far as retraction our position is that these metal  and that this court could fully affirm the district court's ruling simply by finding that there is not sufficient evidence of retraction namely moving in or out within the soul without even going so far as to then  issue an interpretation of the following qualifier mr ames himself while advocating that that term should not be included in the instruction in a letter to us which is found in our contact the surface surface and provide the necessary traction in the court below we argue that the term cleat is separately defined in the patent and that the term bottom surface of the soul is also separately define the specific definition of cleat within the patent defines the cleat as being attached to the bottom surface of the sole so one of the positions and clamp construction that we had was that there would not be an infringement of claim one because the metal studs are embedded into the cleats and there is no physical way that those studs then could be pushed all the way to the surface of the sole plane twelve in contrast talks about the stud being substantially the plane  cleat correct and so to the extent that that particular element where the elements at issue you would say there's a distinction between claim one which talks about retracting to the soul and claiming twelve which talks about the plane of the cleat yes our position below was that claim one dealt with souls without cleats and that claim twelve dealt with souls with cleats if you look at plan twelve however there is an additional limitation requiring that the clips be made of the second resilient material in the old souls of these particular pieces of footwear are made of a single resilient material which both parties and millet going into the district court and not so there is no appeal by mr castner of the rejection of his claim that the shoes and fringe claim twelve of the two eighty three patent the record below on claim construction with respect to what was represented to obtain this patent further supports the idea that retraction is truly required with respect to the olson at and the office situation where the mental state or the metal studs rested in a non treated fashion and then the weight of the wear would cause those to actually slide out and provide traction in response to the rejection mr cas said that this is the precise opposite way of we've of the way our invention functions so it's clear that those metal studs in order to obtain the patent mr caster represented that they would have to move in or move out even if the court were to rule and in this to castres favor and claim construction there is little or no evidence of retraction in any sense of the word the parties agreed on the dictionary definition and what has been shown at best is recited by in two thousand and six and despite years and years and years of the ability to look at test and present evidence he did not come forward with that evidence although the issue of weight of the where is not before this court