tension is the only function identified for the surfactant in the patent and the district court recognized this at appendix page twenty one dollars the district court stated the specifications and claims adequately turn to page sixteen of the opinion the district court makes that abundantly clear he states here's a patent holder substantially defined the buffer to certain one set forth in the specification and and so therefore don't you lose based on claims ring no your honor the correct interpretation of claim three is that you have to actually perform the buffer function of claim one using one of the components in claim three and the problem with all of these is while my us product contains amino acids they don't perform these functions in the formulation infringement turns on does the amino acid in my house product actually perform a buffer function if not it's not the claim buffer and therefore we don't infringe and so by reading the list in and saying that list is pre determined to meet the function the district court affectively read the function out of the buffer limitation as he did with the other ones and so the district court's construction would have been correct if he had stopped at the end of the st sentence that buffers stabilize the ph of crinkle formulations of the inventions and consequently reduces the risk of chemical stability the district court erred by pre determine ing that the things in the list necessarily meet that function in a given formulation as the as the court is aware buffering function is dependent on the ph of a particular formulation and so you can have components that buffer in some formulations and don't in others and that was the final document their claim construction of claim one was definition of a properly construed claim one that is correct your honor and the district court did not distinguish is buffer construction between claim one or claim three it's the same construction for all and he read the list into the claim as a definition and he couldn't have been more clear on page sixteen of the opinion he says this list of buffers is sufficient to define the term in the context of the pa claim structure of claim one which you have just said we should not do your on is this the stipulation is under the district court construction under any other construction the stipulation vanish acid because you can have an amino acid in a formulation your honor that has no buffering effect and so it was right i understand that point of view but i'm just trying to understand in be right that it is untrue as a matter of science that particular amino acids are able to serve the function of the buffer but nevertheless the cl drafted is telling us and amino acid is a buffer and so let me start we aren't we aren't we just stuck with that understanding of the claim no rather than having to go through an and ninety five the dependent claim simply narrows that to a particular list but it still has to perform the function of claim one so it is best understood as claim one requires a buffer that performs a particular function and the dependent claim narrows it to performing that function using a particular thing at the dependent point doesn't read the function out narrows the list of the dependent claim narrows the independent claim from performing the function with any buffer to performing the function with a particular list of buffers right that performs the function and to clarify that i think the answer is no because if you look at this patent at column ten it tells you about amino acids and that they can be used as stabilize any one of those functions or multiple of those functions in a given formulation doesn't mean that it necessarily has it in every formulation and that's the problem here we have never gotten to the point of does the buffer does the amino acid in that actually serve the buffer function yes mr rose we're dealing with client construction here because that's what the stipulation depends on and wasn't a court claim construction of claim one someone clued not only the function of a bu construction should be limited to what the term means not a list of all the possibilities that meet that term is not correct i think you're correct but which refers to a buffer i have to include a functional meaning from claim one by the inventors o definition the buffers are satisfied by a little assets it's in place three and several other claims that are of the same structure it's also in column noname of the specification that says that buffering agents can be and are in the know assets and so list and i think it's a very helpful list and you don't see it in that many claim constructions because everyone claims this way but there's no way i don't think legally there's no case law there's no argument that may have ever presented as to why the district court or this court could ignore dependent claims that specify what in body bags are going to fit the claimed term so your your view is that even if buffer but not necessarily they always do some cases they may not and so for something like amino acids there still has to be  to that kind of background argument here and the district court certainly didn't make that kind of early so now all that's left for us is to possibly understand what is the legal effect of claim three and what is it saying and you know what what's wrong with the other side take that what is being listed in the claim three those are just things that can potentially serve as a buffer but then you have to still go figure out whether in a particular centralized formulation inclusion of any one of those ingredients actually serves as a buffer what's wrong with that understanding  well that's not what the expressway which of the planes says that's not what the express language of the specification a column line says and by the way this argument has never been raised by and if it wasn't actually construing claim three so i mean to say that man didn't argue about claims three is perhaps beside the point what was what the case was how buffer should be used and all of the claims where it appears and the same with the other two terms the claim one was an example perhaps but how that term should be used a let me ask a different question my other question is as i understand the stipulation it's contingent the final judgment is contingent on the claim construction and if we the federal circuit do any modification to any of the claim constructions that are here on appeal then the case has to go back for you no further proceedings and so if we were to say the nd sentence or the claim construction of buffer shouldn't be there and it  removed and same thing for the other term nonexclusive list of ingredients that nd sentence should also be removed for that other term and isn't that alone enough to require this case to be remanded because we did in fact modify the claim construction with all due respect that would be a great law d school final question it's a great academic never did and so under the united states versus proctor and gamble case and many others the appeals court doesn't have jurisdiction to decide underlying waters for academic reasons i don't believe it would require remand if you remove the list there's still reams of data that that are unopposed by our experts by references by internal may it documents by ruling on it is that right it made a ruling that amino acid should be included in the claims which is what that evidence went to we well that's a different question district court justice can you please admit for me that the district court never addressed your reams of evidence and reaching a conclusion about the claims or in arriving at a final judgment i would never admit that i think the  now they're saying that what we need to do is add all kinds of functions to the list of accept yes there's no support in the case law for that and i think be added in their functions and in the case that may have the functions of their functions in the advantages of their functions that would change the whole plane construction process it would change the market in philips decisions it would be a major change in pat the claim construction but expert reports on interim were never submitted so judge chan you are correct that that issue was never addressed by the district court the stipulation expressly addresses what happens im as a matter of law telling us something about how to understand the term buffer and claim one and and so even if we don't as a formal for purposes of this appeal no your honor you would be free to look at that but you don't have the requisite findings of what does the buffer what did the amino acids in mass product do for you to be able to say as a matter of law they satisfy the construction assuming any construct any particular construction requires a function if you were to say simply having an amino acid is another then yes the product has amino acids and and you could do that but but that would not be a proper construction on this record and why not not just don't not talking about what how your product works but just in terms of and then at column nine it tells you useful ones include but but it doesn't answer the question of in a particular formulation doesn't amino acid do this buffering function and so that fi ding is not anywhere in the record on this appeal so that would be a factual determination for the district court in the  means and give you a list and that would be a definition in this case we don't have that and it was undisputed below that's a patentee was not acting as its own l and and in a particular patent even if it had said it with that clarity but here you're looking at a laundry list of potential buffers a laundry list of potential surfact and while they can perform those functions in some formulations they don't perform them in every formulation and so to prove infringement you actually have to test and see if they do  here that's your problem and your honor if you look at page three thousand six hundred and seventy one of the joint appendix we were very clear that we were stipulating because there was a list and that list a limb and they did the functional aspect and so we were denied the opportunity and the district court couldn't have been any more clear the district court says in the construction of a buffer at page sixteen the list is defined to be a buffer and we don't think that's the correct reading in the context of this pat and and the parties agreed below that buffer is a functional term and you have to look at whether there's actually a buffering effect and the district courts construction denied us that opportunity  as adjourn until tomorrow morning at ten a