may please the court this court should reverse the district court's ruling that the nine nine eight patent is invalid on the basis of recapture because the court improperly construed the claims contrary to the district court in a i e's construction that starts with evidence we believe magneto's construction that closely follows what has been described as the invention and how to make the invention in specification is the correct construction adopting magneto's construction  to build caves for your definition your i think we can all agree on normal definition of solution for purposes of this case description of the main characteristics of the invention and he talks about this invention is a is a ceramic insert surrounded by metal and so he talks about this ramming insert itself ma itself a composite consisting of a solid solution or a homogeneous face face of twenty percent eighty percent aluminum and eighty to twenty percent as are going to so he at that point he is describing for the ordinary one of ordinary skill that this thing is a composite it hasn't another additional characteristic it is consistent it's homogeneous way the on column three don't you have the additional problem mr regular person of skill in the artist going to know both of these meanings which we're going to know the distinction between a solid solution and the ceramic composite i think your question assumes though that there are that they take the meaning of solid solution from the extremes of definition when they rose a version of skill in the art know the distinction between a ceramic composite of the sound solution yeah i don't think necessarily they do detail how to make the ceramic pat and it says a column five for of the gives an example of mixture of seventy percent five percent of alumina twenty three percent are konya you fuse those two together and you create a composite grain the pattern goes on and says now you take these composite grains you aggregate them you pile them into a mold you add some of the east at piece of and you've made a ceramic pad that's what is being  specification and that's the only description of how well that ceramic pad is made so solid solution and homogeneous face have to be describing that ceramic pad made by fusing aluminum  thing there are they are they are synonyms for that thing which was described and i would say like william shakespeare's romeo and juliet what's in a name that which we call a rose by any other name would smell as sweet but in this case the only thing we did was change the name from homogeneous salt solution to homogeneous ceramic composite but it's still describing the exact same ceramic pad and the only method disclosed in the patent for creating that ceramic pat it can't mean anything else a look at column three lines fifty six through sixty one it strikes me that maybe there is some slightly loose language but associated correct ok and so you're saying that within the pads and zirconium particles present a present in the aluminum they could possibly increase that and so forth greater then each of the components considered in oxide that is to say the suggestion i take it from this passage that you're drawing is that these molecules maintain their separate honor talks about zirconia has certain characteristics of making the product tougher alumina has the characteristics of making it harder and then you combine these in this composite and you like just the proportions you can make the product depending on its environment these things are used for crushing rock and iron ore and so if you're getting a pounding you want it harder if it's a more abrasive material you want to proffer and you can adjust those who have i think you can adjust dr glaser also went on and then said just saw it so we're clear he said you can't do it at equilibrium he said but you might be able to do it in a more fish sense but then he goes on further and says the sites to a study in the study would didn't take the scuse me i want to take you up a little higher into column three when it discusses the conventional method ceramic grains manufactured in a conventional way is  line twenty eight yes i like profusion by centering what would one of skill in the art understand there what is what can be done conventionally you confuse alumin together to make a composite where the each retain each alumina answer cornea retain their kristen structure they are not in solution that's what is meant by conventional means and to be clear making fused grains was well known in the art this we did not invent making fuse grains what we did was take those fused grains and figure out that we could insert them into a metal casting and they would provide of very solution would be considered at equilibrium ok and your claims are not that he will librium right the claims don't say equilibrium but they say that that the fusion of the grange is done in a conventional manner this and even then you don't get equilibrium is that you don't get equilibrium and this is a microscopic amount this is this is this is a theoretical scientists looking at making us all solution in a micro microscopic amount not in the size of the grains that are required in the claims just so one quick point eighty to twenty and twenty to eighty does have an equilibrium within it right you can have fifty to fifty in those ranges right you could make it fifty fifty but you say that's impossible it's impossible it's impossible to make it as a solid solution as a i e e e and district court defined as a fused grains yes you can have fifty percent alumina fifty percent of everything you want everything  characteristics of the product so well you know the bottom line i take it is that what you're saying is that if the term solution in the original pet were read to the conventional chemical meaning of it please the court this court should affirm the district court's conclusion that in order to overcome the p t o s objections to the one seven six patent application magneto's surrendered subject matter other than quote what you see is somewhat solution as that language is commonly and ordinarily understood and then attempted to recapture that surrendered so to matter by changing so much solution to ceramic composite in the night it happened the specification of the one seven six patent the one to which the court specifically referred recently in column two explicitly refers to the invention as being based on a quote somewhat solution and more importantly magneto repeatedly relied on this thing wishing feature of having a quote homogeneous  skill in the art would have known that and perhaps would have read that specification passage to make that clear i think there is another way of looking at that this if you look at the prosecution history larman in particular had two things ceramic composites as being made by century and so what magneto's is quite was claiming before it made its mark it's representations to the patent pablo's was something that laurie had already accomplished and so a person skilled in the art looking at the entire of the intrinsic record alone would know that magneto was claiming that he'd done something extra i'd like to also correct one thing that i with which i respectfully disagree with my colleague and that is that question is not that you can't have a summit solution period of alumina and zirconia it's at equilibrium it's that you can't you can't have it i think the there is agreement that you can't have it within the percentage ranges that issue here is not possible  it was by the face diagram of some other way we found a way because the pattern is all about the ceramic combination we found a way to move in to those for those ranges that's what magneto with representing the patent office and it did so not once not they accepted what magneto was telling them and if you accept what magneto was telling them that i don't think that was where the sentence with as the room with from both actually doesn't use those two two word ceramic and put composite right next to each other what it specifically says is of a composite and then come the magic works because if you are under ordinary english if you ask yourself as a person skilled in the art a person reading the patterns as you look at the path you say it's a ceramic itself a composite and then it uses the words consisting of and so if there's a definition it's what follows if there's a ceramic composite that has a particular meaning in this pattern it's what follows after the words consisting of and what does that say it says consisting of a solid solution or homogeneous face there's no dispute in this case that a phase has its ordinary meaning no once can had otherwise and solid solution have a person skilled in the art certainly no this is the definition if there is a definition in this pat construction in the district court somewhat reciting then then said at the end with no other saw you present in the salling solid solution and yet example one express discusses adding other oxides the district court construction at that point was limited to claim one of the one seven six patent which it was at that point the only independent claim and that language can claim one had the limit language consisting of as opposed to comprise i think that's the what i think is that to which the district court was referring what it said with no other oxides and i believe  that the ones had a compact reference to which the court was referring to would have been or zero zero three eight five which is the sense of one seven six patent and the page that has claimed one on it it was not addressing the issue of what happened when they tried to expand the patent to add an independent claim  twelve which has the more open ended construction of comprising we do not take issue with the word with out in claim twelve aspect of comprising we take issue with the time substitution of the phrase ceramic composite has  i think what they were saying more generally there and i will suggest to the court that this is not the best written of patton's what they were suggesting there was merely to address the general issue of how one combines these different these different or combining these different oxides gives you different responses i don't think the word particle has any particular significance there certainly not as it wouldn't refer to the s your contention that the discussion the discussion of lamie he had indeed were treated to the conventional notion solid solution to do that i would start and i'll ignore for a moment the column two lines sixty three or sixty five in the specifications and we've already talked about that that's what starts out of it in the history that was in the specification that was proposed the part that says ceramic itself a composite and then says consisting of a solid solution of his face he would start there but letting go would go to what follows after they get the rejection from the patent office the first thing is that the examiner distributed you know alumina background but with the zirconia retaining its separate clues crystal and structured the same for which they contend so this is in the prior art and i would further point the court to la ramee lines column nine lines thirty nine to forty three which is in particular laurie also makes the same thing by centering which is that j a zero zero one zero one and what does magnitude do well the first thing it do does is it says and i quote this in the attorney's response the invention is based on the observation that the ceramic padlocking right now sorry i'm going to give you the citation is j a zero zero three four zero ok and that portion this is from the attorney for magneto's says the invention is based on the observation that the ceramic pad must be a almost genius solid solution it doesn't say ceramic pad it doesn't say there's idiosyncratic to a a l two o three slash z r o two solid solution and then not satisfied with that they submit this year france was separation declaration j's year zero zero three five nine he says that he tried one thing or another he says a lot of combinations of a l two o three slash the are owed to have been experienced by me way making a distinction between solid solution and ram a composite nowhere did they say ceramic well they're making a distinction here from larman which if you read lar essentially the ceramic composite for which magneto now content is so to get out of a large umbrella of alarm and what magnitude did both in its lawyers representations to the patent office and in a sworn statement of its talking about the mixes and what he's saying here is i've tried the various mixes in our invention is a homogeneous solid solution that meets the advantages that are specifically referred to in column three but the response is the it doesn't sound to me like ceramic composite isn't but the substance of the material that is used for that is a ceramic composite regardless of what purpose it's used for i mean if you look at or like that may be but the question that we have to decide a guess is whether there was a surrender of the difference between ceramic composite and solid solutionis as we and then surely understand that and that the pushing that judge larry just read doesn't sound like such a surrender i think you have to ask what an objective observer would look at and that's what the standard is under the law what an objective observer would look at in looking at the record as a whole and what he'd see over and over and over again with the representation by mag through its inventor and its lawyer saying we have something different because we have a solid solution and if you ask or if you look at it it's really not that great a leap they're saying people if you look at the beginning of the pattern which we described in earlier brief the number of things they concede have been done already including a battle matrix and a surround and putting the metal matrix together with combinations of alumina there tony of all had been done before the only thing left for them was this or it was the solid solution it was the only thing they had to carve out and it that's the reason that you see it in their representation to the patent office and i might add it's also the reason that in the european patent examination process the examiner as we code in our brief specifically called out solve allusion to the distinguishing feature and since you say you can't do it then they had reduced and sells out to zero i think that what they were telling the patent office was that they had found a way to do it it seems to me legally irrelevant only that is why the emphasis on unsolved solution doesn't cost you your case my understanding of laramie was that it used precursor metals to impregnate grains not in the same manner that we had a solid solution homogeneous remick composite of aggregated grains together already formed into a pad and then impregnate those so we were saying both that it's a solid solution it's a ceramic pad and the impregnation must occur into the pad it was not it was not saying that that it was a solid solution as they defined it you still were still for this what throughout the prosecution history we use out solution but we use how the solution for the only thing that we have disclosed in our patent fused grains aggregated into a ceramic pat and yes we used it but that's what the inventor meant and he made clear in the specification that's what he means so it's just that the sheer number of times that we say solves solution doesn't change the definition it's still what is claimed and described in the pa d i will leave with this the best choice in doing claim construction in a patent is to start with the claims and the intrinsic evidence when you start with an extreme sick definition you run into trouble because it's not tied to what the inventor described as his invention and what he claims is an invention and that's what we've run into in this case we've run into a situation where the district court adopted and extrinsic definition of that's not supported by the specification that can't be made by the process was disclosed in the specification and simply isn't present in the specification the district court's decision should be reversed thank