first case this morning is into men versus magneto our mr war of the magnet elements which are the magnets with alternating larry's visit for physics reasons there has to be space in between those two magnets of alternate clarities and also these magnets are so strong that if there's not something in between those two magnets they tend to spin into a new location ok the significance of the hall bako ray is that it creates a one sided flux and in the  all of the magnets are participating in creating that one sided flux given that can any of the magnets in the whole buck array be considered intermediaries their small person dissipating as magnetic elements to create a one sided flux how do you how do you therefore as you must say that some of the magnets are nonetheless intermediaries because the claim the language tells us that they are  language provides that the bag elements are those elements that are part of the plurality of magnets a lot of the carry real alternating polarity those are the only magnet elements that we're looking at for the magnet elements so we don't hold back arrays where the elements that are the bags there in between those alternating clarity magnets are parallel to the kerry real as opposed to perpendicular they are not says the flux must run across y c wouldn't that mean that the magnets having their north and south pole pointing across the air gap would be considered magnetic if these rights there's nothing in evidence or factually submitted to the district court but in the hall bach or a those magnets with the polarity running parallel with the track itself nothing in the claim language claim one language or the specifications that would exclude a magnet as being an intermediary no matter what the arrangement of that magnet is the plain language says look to the  pain excuse me for interrupting you you agreed with the district court that the intermediary is just something between the magnetic elements and then you also argue that that something between the magnetic elements does not participate in the flux now doesn't that seem to matter we did not argue your order with all due respect that does not participate in the flux will be argued was that those alternating palais are the magnet create the main braking force that was the phrase that we use we're not saying that whatever the intermediary is cannot participate in providing the flux that's nowhere in the claim language it's there or in the specifications so those were not specifically excluded either by argument or by the fighting language or the intrinsic evidence here instead your honor the pad language tells us to look for those alternating kaleri magnets and there's no dispute that alternating alternating means opposite there's only two poles in a magnet one north and one south and a lot of those carrying the rails those magnets that we're told to look for look between in order to find the intermediary are those adjacent pairs of the same rail one with the north facing up to the next with the south facing up so it's your theory that the alternating magnets remain adjacent even though there's another magnet between them is that how you read it it's b yes your honor it is because the way specific language is alternating pairs of  the same carry rail because by towplane language we're saying there is an intermediary between those alternating clarity magnets so they cannot necessarily but they cannot be next to each other let me ask you about the flux you mention the flux understood what the whole back to rate looks like that used in the magnets are brakes and that shows that those intervening are intermediary magnets are of lateral or parallel to the clarity's are parallel to the carrying rail and if the c finds that there is nothing in the claim language or specifications that requires or limits the intermediary from participating in a flops in any way then you don't have to remain for the purpose of honor the district court was not asked to determine if it's part of the claim construction the contribution to blocks of an intermediary is important the other basis in addition to the fact that the district court did not look to determine what the magnet elements were which magnets were supposed to look at the record also fit it appears to have although it states th at it did not bring a specification a limitation from the specifications for read that into the claim one language and that's best that limitation was that that intermediary is non magnetic in response into main argument to the district court that the intermediary can be magnetic and the district court in response and in rejecting that argument stated in quoted the portion of the specification that describe the figure showing a non magnetic intermediary based upon that deny magnets are into misinterpretation that the intervening intermediary can be magnetic intermediary and more specifically in play to it depending play with only one additional limitation that additional limitation is only that intermediary is making it i spend a lot of time in the scholarship of patent law and we all scoff at the doctrine of the reverse doctrine of equivalence is this the one case in a million where the doesn't reverse doctrine of equivalence applies where indeed we do have a magnetic intermediary that fits within the language of the claim but the claim operate the accused device operates in such a different way that it is not infringing your heart the whole block away creating a one sided flux and the that are parallel to the to the track participating in the creation of that any current in a way that was not anticipated by the by the client this is not the one in the  brief that although claim one would cover a magnetic intermediary that would be steel or another metal that may be magnetic there's nothing in the claim language or specification that would slice out that force carve out an  exception what is magnetic to what does not make that it for the purposes of this claim further your honor we do refer to a one sided flux the flux has to go across that area in order to provide for breaking force and that's what this pa about having that flux go across that air gap in slow down the road coaster ride slow down of the dropping power right so operates in the exact same way it may provide additional direction or additional complements to force its interpretation or its construction of the length limitation it misinterpreted conductive rail for conducting part and we would argue that that needs to go back to the district court to determine if to re evaluat device so i'm puzzled about this line problem that is in the context of a roller coaster is it your perception of this whole device that the rail will go with the conduct and go the whole length of the roller coaster railing or is it just a piece at the end where the car comes into the rest stop how does that work it works in this way to roller coaster implementation the magnets are actually on the track within a hundred or two hundred yards of the station the rail the conductor braille is on the passenger car so it cannot extend the life of the roller coaster ride it only mr ward will restore three minutes of your rebuttal time and would you give mr saying skank thank you very much and the extra three minutes should he need to use  just in this claim something disposed between the magnets of opposite polarity then even if that thing which is between the magnets of opposing polarity happens to be another magnet that is participating in the flux doesn't it still fall within the scope of the claim well your honor i would say no the reason being is that the claim language says that he did jason pairs in between which the intermediaries is disposed those are adjacent pairs of magnets of alternating polarity but claimed in some instances refers to opposite polarity when it refers to the magnets across the gap one rail to another real but with in the than opposite polarities as we know from the whole back or a design the polarity of the magnets does not have to change to be a hundred eighty degrees opposite the polarity of the magnet can change incrementally by forty five degrees or ninety degrees are you saying that in the that this middle magnet is an alternating magnet is that what your argument is correct one that's that's pointing up instead of pointing cyclades well we want magnifying up to directly adjacent to it is a magnet pointing sideways that is an alternating polarity and we have nothing in between them and the record things first off we've got the claim itself where it uses the different terms in different contexts and uses opposite up opposite polarity to refer to the magnets across the rail versus alternating polarities to refer to the magnets within the real number one number two in the specification where it describes the intermediary it again uses terms or uses different terms and says that the different meaning something something different but not necessarily a hundred eighty degrees apart and so the specification uses different terms likewise in the class of the self it uses different terms in the presumption is that the different german to english why would they want to use two different terms meaning two different things to describe the same features that's what i'm puzzled that well the only answer you give is that presumably whether you know something whether there is an intermediary you could presumably determine that the magnet could be the intermediary i will note there is no disclosure in the specification of magnetic claimed as say dependent claim why doesn't that claim differentiation argument itself disclose a broader meaning for intermediary that includes magnetic as well as non magnetic balance two reasons your honor number one that depended claim was added during prosecution it was not your original disclosure upon filing so it would be matter and secondly you know we have a question as to whether clean differentiation is more than just a guideline in the course of the claim construction process or whether it is so we have said in philips that the one place where it may have application is in the instance dependent claim in a lightning the breath of the independent well i don't know and you're certainly you know because i'm not saying it should not be consider all i'm saying is that i don't think it rises to the level of appears that the magnets are directly contact with one another and all the more reason why when they claim and you trivia area affirmative they had oh it should be entitled to rely on that narrow well your honor i don't think that we have to construe the claim to cover every single embodiment that's disclosed clearly that preferred by his wanting which there is some type of nonmagnetic intermediary that's what the both disclosures about but  other if any one limitation is missing then there is no infringement obviously talk a little bit about this length issue which we just got to at the end here your  nick's declaration of j three o four in the roller coaster the conductive part and rails are attached to the car that the passenger sitting it is in the fuse device about three feet long for each car the ride itself is approximately a thousand feet the magnets the array of magnets are fixed they are mounted on the ride itself and the stationary part of the ride as the car independently energized the magnets are energized correct the magnets provide the energy in that scenario and so there is there was no debate at the district court level that the conducting or rail in the accused products was substantially shorter than the end to end length of the ride and the real issue was it was a pure legal claim destruction issue over what does the line mean and rails as opposed to turn sideways and we pointed out in our previous house in every instance where the term length is used in specification and even in other signs it's used to refer an issue in the into the reply brief as to whether we properly appeal that what we finally appealed from the only available order in this case and this is an appropriate basis to support a finding of no infringement issue if we get past the point where magnets can intermediaries and we source get that we got into a little discussion with the other side about then the question of infringement if we were if we were to change the claim construction and do you agree the other side said that it's not necessary choir that just the magnetic elements create the necessary flux because the intermediaries can also contribute to that and that is i understood the other side thought that was clear is there any dispute on  court to get to that said look the issue on the intermediary is it is not whether you know it provides less breaking force of than the other magnets there's no disclosure in the patent whatsoever intermediary provide braking that the magnets on the other rail from the on the two carriers the magnets from the other rail in the accused device are not opposite polarity we don't have opposite he was talking about the magnets on the other rail not the issue that's before this court which is within a given rail you know is there is there adjacent magnets of alternate color i'd like to touch on inquiry the reason being is that the profiling investigation revealed no information about the orientation of the magnets in the u k device and even under into his claim destruction knowing that under the rule eleven standard is an objectively reasonable standard and from that point of view there just was no evidence of about the orientation of the magnets from which the r legal status there was no additional factual evidence of the plaintiff's investigation presented so we know that that legal standard in this case was dispositive of the sanctions was so as you understand it the term alternating polarities means exactly opposite polarities and now we're talking about as used in the three fifty baton and he says yes it wasn't about reverse polarity it was about different deposition and that is what is justified by the intrinsic evidence as well throughout the specifications and the claim weight which can i just ask you quickly on the length of the fixed device part that if we were to accept the court's claim construction which you challenge is it still your view that there are some genuine issue of that respect a little infringement on the accused devices again we accept the district court claim construe and that the real has to run along the sanctions issue and it is not an alternative grounds for granting or for this appeal because what we are challenging him to mean is the bridge of summary judgment for literal judgment not just of the present judgment district court therefore it was required something that had to be cross appealed it wasn't necessarily cannot be relied on by magnets are here likewise magnet never raised before the district court the argument of what do the opposite are opposing magnets look like there was never a factual issue or basis for infringement at the district court thank you thank you mr ward thank all times