court affirms the district court's construction of either emotion or oxygen dissolving substance then we have firm the final judgment notable with respect to its construction of the term motion and so with respect to that term your honour's the district court adopted a claim construction for that term that is directly contradicted by the plain language of the cleats and it did by focusing on dictionaries rather than on the intrinsic the same is true with respect to the term oxygen dissolving substance this record ignored clear and unequivocal disclaimer proposal that the boxes that the solubility need only be greater than graphite and a few other things which are extremely low is wrong and also said that the right benchmark for the solubility term is water and as part of that relied on the notion that bodily fluids wear this device will that that that this device will of but not blood but other bodily fluids and that those bodily fluids are essential e water like in insolubility of oxygen if that last factual premise that i'm asking you and the chalet do you dispute that factual premise about about the solubility of oxygen in those bodily fluids be suffers from the flaws that we spoke to in the bridge that ok so as you're on requested focusing on the term oxygen dissolving substance st from our perspective you impermeable and so you use the term benchmark your honor and i agree with you that's what this dispute was about what is the benchmark and how are we going to define it and prosecution history it is water on and so i guess you want the term oxygen dissolving substance to  or moderate for that matter ok all right thanks are due our position is that this disclaiming statement that was made to distinguish the wilkens reference in accordance with this court's precedent in omega and its subsequent rulings has to be part of the claim construction this fight was over what is the benchmark that the oxygen dissolving substance is going to be compared to during prosecution  distinguishing wilkens dr clark explicitly gave us that benchmark he  are not oxygen is all these substances and he says it's because they don't have high enough oxygen value billet there is nowhere in the intrinsic evidence and that come hadn't pointed to anything where the benchmark  term and the spec says the amount of that has to be greater than seven and then during prosecution the examiner points to you know prior art smith and and the  the applicant says oh no no no smith has only one we are higher than that that would not redefine or disclaim or set a new benchmark of one if the other evidence made clear it had to be at least seven and that's why it is water not the seven and one the graphite here and then the question is why doesn't water remain the expert the extrinsic expert testimony and it was bought into by the district court and so what are the passages in the ms written description for example that one is that common ten around line thirty describing water as an example of a poor oxygen carrier and then the other passage a column thirteen where at the very top of column thirteen says an advantage is that steroids like per fluorocarbons are much better at dissolving oxygen and his water and so the inference to take away from all of this is that the patent drafter is criticizing water in terms of its capacity to be a good oxygen carrier as something that oxygen can dissolve in and the entire purpose of the patent is to have in most a side with the enzyme some kind of substance any kind of substance that is a very very very good oxygen carriers something with a very high oxygen solubility and when you add that all up we should take away from the written description that the patent has essentially disclaimed the idea that water should be thought of as an oxygen dissolving substance your honor in response to that i say as follows i think it is completely improper to impart disclaimer limited excerpts there is a discussion about water however my understanding of this court's claim construction jurisprudence is that it is improper based on too limited to statements about a preferred body and to then  those two disclaimer and impart limitations in the clinic in contrast in the prosecution history you have a clear and unequivocal statement as to what actually qualifies as an oxygen dissolving substance and i being defined in relation to four different substances not water and so to me or out of this is a question of the proper framework for claim construction and the weight that should be afforded  hear from the other side dissolving substance and a motion provide an independent basis for a finding of no infringement here and our metrics must prevail on both terms to obtain a rematch and the district court's constructions of both of these terms as well as the other dollars patent states that that claim to oxygen dissolving substances one where oxygen is extremely soluble and having a substance where oxygen is extremely saw uble is critical to the invention in order to address the glucose oxygen imbalance problem that's described in the patent that problem is that in bodily fluids where these sensors are placed there is a very low ratio of oxygen to glucose the pattern indicates that  ensure that you're at achieving an accurate glucose measurement you need to provide enough oxygen to ensure that that reaction is accurately measuring the amount of glucose instead of just the very low amount of oxygen now the specification and the prosecution history of both states at the issue being addressed is that porous all you ability of oxygen in biological fluids which the court i know noted consists of essentially of water and that's also in the record at appendix twenty four dollars of seven and the solution is providing an emulsion with that oxygen dissolving substance where oxygen is extremely soluble or preferentially saw yuval in order to provide more oxygen and both the use water to describe the benefits of that oxygen dissolving substance now are metrics position here that the oxygen dissolving substance can be graphite or certain polymers that are barely if at all  soluble or have very low oxygen solubility would undermine the fundamental purpose of the invention which is to use that oxygen dissolving substance to address the glucose oxygen and balance if the oxygen dissolving substance can have an even lower oxygen solubility than water or biological fluids where oxygen is already poorly soluble then one would be better off just leaving water or bodily fluids in the emotion rather than clean five refers to solids and steroids but doesn't support to be deviating from the customary meaning of a motion for at least two reasons st the specification indicates that the reference to solids and claim five is referring to solids that are st dissolved in solution in other words things that are liquids before they are i'm also fied and the specification provide some examples of that for example in column five lines twenty five through twenty nine it explains that the enzyme which is typically a solid as well in the emotion is dissolved into an aqueous solution before being i'm also fied if there are any example in the written description of the oxygen dissolving substance being initially a solid then dissolves into the liquid liquid emotion there is your honor right at column twelve lines sixty three through sixty seven  the path describes what the patent refers to as an oxygen dissolving substance steroids which are also referred to there in claim five being used in the emotion concentrations in the solution at about  the passage towards the bottom of column eight particularly the sentence starting at line fifty six that says quote essentially tiny solid or liquid particles of material that readily dissolve oxygen are held an intimate contact with an oxygen utilizing enzyme which is preferably in an insoluble form and then goes on in the next paragraph the action of this in most of fide oxygen carrier is twofold and i take away from that the idea that the oxygen carrier is being described as having been the most a fide with the with the enzyme and as such it is in the form of tiny solid or liquid particles in intimate contact with that inside it feels like i know this is my conflict with the ordinary understanding of the word emotion but here the pattern seems to be contemplating that we we have an honor you're not misreading it in the sense that you're correct that the oxygen dissolving substance has certainly been emulsified at that point but what that portion of the specification around line fifty nine also indicates is that it's now been insoluble lies well and that's consistent with the claim language that refers to adding the cross link or to then form the insoluble lies jabil which is different than the emotion and that's the same thing that's being referred to in that paragraph which you can see by the language talking about the enzyme which is then preferably in an insoluble form so at that point the crosslink or has been added and the emotion has been essentially insoluble lies into a gel well when w and then that motion comprises three components the enzymes the oxygen dissolving substance and the protein cross linking engined which forms a stabilize so to me just reading the claim on its face it seems to be equating the claimed emotion with the stabilized gel and the stabilizer joe is made up and and emotion interchangeably those words are made of three things and i'm oxygen dissolving substance and cross linking engine so that seems to be entirely consistent with what's being described here at the bottom of column a which supports the idea stabilized intel the cross link or is added and at that point it then forms the stabilized gel which consists of comprised of the crosslink protein and then particles of the oxygen there are you saying i'm misreading the claim when i read the claim is requiring the cross linking agent to be part of the emotion i think the cross linking agent is part of the emotion your honor when it's added to the emotion however when the cross so in other words the emulsion consist of those and is comprised of those three substances the liquids and then once the cross link are is added it becomes something different the stabilized gel and everybody in this case the experts acknowledge that a gel is different than an emulsion and that persons of ordinary skill understand that those things are different outside the context of this patent i agree with your honor this patent also indicates does describe the motions as being to liquids throughout each and every example of the emotion that set forth in the patent in short your honor our view is that consistent with foreigner and other authorities the references in the specification they are not inconsistent with the plain and ordinary meaning of the term  is it your understanding that the reference to steroids at the bottom of the column twelve that you initially were referring to steroids is being used as an oxygen dissolve or there that's not the way i understood it are you saying it is so the steroids your honor that they're describing there is actually used as an anti anti inflammatory which can be added but not the oxygen dissolving stuff  steroids in the context of serving as the oxygen dissolving substance you just give me a yes or no answer please your honor it's talking about the steroids as an anti inflammatory the answer no well i don't think it's i don't think it's not an oxygen dissolving substance but the context of this particular paragraph in this particular part of the written description when the pattern is talking about a steroid is it talking substance and in addition to the specification your honor the prosecution history here does reflect the plain meaning of the term emotion during prosecution the applicant used the term droplets to describe the emotion and its components and to distinguish the prior art where glucose oxidase bonded to a solid component which is another strong indicator that the customary meaning of a motion a liquid dispersed within a liquid is used here in the clams  if the court has any additional questions for me on either oxygen dissolving substance or emotion and i'm more than happy to answer them warm also happy to address any of the other terms of the courthouse question of the statements about critical to the invention of the purpose are parroting expert other than once again focusing on the intrinsic evidence but setting that aside for a minute discussion that we've all been having the district court found that permeable it has no place in the construction of this term and that is that lines seventy eight from that page at line twenty two to twenty three page turn the district court in support of its holding moralized excerpts from the intrinsic evidence that explicitly are discussing the ability to not sell you billy and still why should we  tells us is something that is use to define the term your honor may go this court set for the the framework for disclaiming statement you start with the ordinary meaning of the term the ordinary meaning of the term is a substance that dissolved oxygen and what you do then you narrow the scope of the term consistent with the disclaimer  that's all i had unless the court has additional questions about the other terms that should know that i don't have much time left any other questions i don't know ok this matter will stand thank you counsel thank you the honorable court is adjourned until tomorrow morning at ten a