a just record in the eastern district of missouri let me make plain at the outset what we are not arguing here today and that is that the prosecution history is never an issue in considering claims or indeed prosecution should a prosecution history should not have been considered here second we are not arguing as the response seems to suggest that this court should enter a summary judgment or directly some judgment fr although we do believe that the record before the district or present sufficient credible evidence of infringement both literally and by once that ultimately a judgment of the princeton would be the right result instead the crux of our argument here today your honor is that the district court misconstrued in its three consecutive claim construction of the term lever arm and release lever in a way to require that one end of the release leader which is pictured here page four of our pre as one solid piece the district court determined that th council who has the same model is so the district court determined that the release lever needed to be physically attached to the leaves but that the finger plate did not and this is manifest mis understanding of what the invention is which anyone skilled in the art would understand as the worldwide dependence themselves at mit they when their summary judgment reply to the district court at a four six nine a fifth requirement for infringement is quote that the lever arm must be a rigid the components namely the lever arm and the finger plate and they said the same thing at the market here in the appendix of eight to seven nine point five on february eighteenth of two thousand and nine quote the lever arm is part of the release lever so those are material facts that are not in dispute and they are facts that  manifestly confused in its ruling and claims construction which therefore materially prejudiced the summary judgment argument because that was the crux of the ruling on summary judgment and that fact that crucial misunderstanding on the part of the district court we submit your honour's is enough to overturn the district court's claim construction and contaminant the reverse the summary judgment not friends with but because the court also looked through the prosecution history let me turn to that as well and here again as i say we do not argue of course the prosecution history is never relevant to claims construction what a court does or should do in construing claims is look for the intent of the inventor and as we all know it looks for as to the intrinsic evidence including the claim language this was occasion and if evidence the prosecution if in evidence the prosecution history but in doing so the court misconstrued two pieces of prosecution disavowed disclaimer and the prosecution history a little broader than that right doesn't refer to vertical pans as i read it and i'm reading now from eight to fifty four but twenty two to the contrary the leve arms of the present inventions attached to the leaves of the finder without requiring any additional mechanisms or fasteners to provide for the operation of the leads are therefore eliminating the need for it pim it's required in the and one way to accomplish that low profile with its attendant vanity it's of less throw weight and so on is to reduce vesely that profile by the lack of a actually mended claims rather than just distinguishing over the prior let me turn then briefly to the infringement part of the case again we submit that there was ample record about that i'm well actually the language that i read earlier really pertained more to attachment i guess than then to the pin issue least the first quote so if you could address why that doesn't disc confusion between the lever arm which is a part of the release lever and the release lever itself well let's assume it's so i guess i would say well so what i mean that you could just talk about whether the prosecution history has disclaimed any circumstances in which the lever is not attached to the leaves and by attached using the term to mean is equally attached not simply touching or pushing on but otherwise not attaching the cord is asking if it's disclaimed cases of attachment is opposed to contact with is much broader than attachment and does not require physical attacks but in your prosecution history you say the lever arms of the present inventions attached to the leaves of the binder view irrelevant because that was not the distinguishing factor on which the examiner re easy touch device is the one with the red trigger on it and what is not in dispute is that this device uses a pin to hold this curtain pla buys and also what's not in dispute is that this device has only ever been made with just one trigger not one on each as this one has and that's one part of the facts the other part of the fact is that's important you but i can kind of show it from here the device has i think it was kind of like a t on the end and it interlocks in between the two what is called lead him right there is a little gap or a little notch in each side of the leaves so it i guess at the bottom of page fifteen this picture is your device that right yes and there's the horizontal pin and they are cutting device appellant's argument the application was for what we call it low profile ring metal and that's just simplistically the lever sticks out horizontally instead of forward and the fact is is that there it's not the first low profile ring metal that somebody plied for a patent on in fact the trussell references were low profile ring metal one over one hundred years old so there's been several of them in the art and when the examiner cited that against the application the disk you know the focus of the prosecution turned toward the way they were while release lever is attached to and operates  that that sentence that i started to quote from continues with and also eliminating additional manufacturing and labor costs assembling such a binder as taught by the trussell patent the point that your honor is this this is an embodiment of what's disclosed in the patent and the release lever which includes the lever arm is attached to the the leaves there's no additional mechanisms that are necessary and it's not surprising that one would not sure i seen one exactly like this before in this regard in that this is a rising claim in which we're trying to ask the question of whether there is a disclaimer of structure and if you have a pricing claim normally if you have extra structure it is a real so how do you square a disclaimer occurs during prosecution that becomes part of the it's if that were appended to the bottom of the plane even though the rest of the claim is an uprising format well i think you know way you could say it that way but i believe there's a case on i don't have a cite for you were i think the court has said that a prosecution disclaimer such as this is not meant to add additional imitations to the claim but it's a it's a describes what the scope of the invention is and so because it becomes a claim construction issue you use wrapped into the cl construction process as it did here and in the but it's not the normal situation in which we're using the disclaimer to define a term for example in in the play it's a it's a case in which we are as you say setting aside the claim claim construction and then doing another operation which is to decide if there's been a disclaimer of plain scope quite independent of any words are other meaning that the claim may carry right i think that's right but i think and i and i we went down the procedural path that the cases seem to go and then you look at that disclaimer you do your best to attach it to so to speak a clean term in the in the claim and then define that accordingly but that doesn't really work here right you can't really find a claim term to say that disclaimer narrows the claim by definition of a particular term well if you said i mean as it's been defined it's a lever arm has been defined as one that is attached to the leaves of the binder doesn't also say think it's just it's a northward and somewhat unusual posture for a disc disavowal but i suppose the rules of this of al still apply no matter what the form of the play well i think it has to because  you know the public's in the public notice function and the prosecution history serves when when a patent he comes in and says my invention does not you know does not include lever arms or gage many functions of certain types of the public is allowed to to rely on so what you're saying is this that the applicant could come in and say like invention it doesn't apply to doesn't include regarding even if there is no way to tithe that disavowal to particular language in the pledge well i think that's way yeah i agree with that your honor and the reason why it was tied to particular language is that when you questions even if there isn't then you say that the scope of that this is all doctors the same i think i would ask to be there i don't know how else we could get around it because it becomes a claim construction issue i think that's why it ends up discussed in the context context that it was the district judge i think are the main street judge relied on the language that the lever arm of the president invention it set or etc so to him it made sense to construe the term lever arms did hear a little bit in mr algates something of the fact that i think one of their arguments has been that i'm this school disclaimer should not be so broad as to include things beyond a particular pin or transfer references but of course this court case law has said that that's that's not allowed you you disclaim what you say and it was more than that you still disclaimed all that and i think that's controlling here in response to that position  i'm well i actually have three minutes left but that's pretty much all or it's a very simple case we have an alternative grounds for dismissal that i be happy to submit on the breach in this order there's any question about either issue of independent claim one is in gauge went with and obviously the claims that the pen from that the language in claim the seven is not as apple e is represented but is contact you address if you would that specific language she used again in the prosecution history the lever arms of the present invention attached to the leaves of the binder without requiring any additional mechanism versus contacting my argument which i am for size again is that the prosecuting attorney was speaking broadly the point was not whether they attach but whether and that gives up separately rightly points out equivalents of that but i submit as is my final comment unless the board has further questions that