second i want to show you that you failed to consider five years construction of the asserted claim under which and an appropriate construction of a claim one there is no basis to conclude that there is not no little french and large area and one engagement area and she says that there is no literal infringement because the accused capsule has only one area so the question becomes what did she mean by separate in that two separate areas you can take only two possible meanings of the first is a more narrow construction of it which means that they are located separately in different areas on the wall in which case there's no overlap and i would suggest to you that neither party ever submitted a proposition ajax cannot stand behind it and there would be legally untenable because there is absolutely no extrinsic source that you can say as a reference or authority for that position what about the language of the claim itself that talks about the first three lock area and the separate engagement those are defined separate separate record that would suggest to you that they cannot be called terminus or that they must not overlap ajax never said it we never said as a matter of fact as our experts say your honor that there is something gauge when the pre life position with that ring fift i'm saying something that is in the same area nonetheless we'd ought to claim that describes two separate areas that's right what we're saying is it's a bit if you look at the claim language and specification it is a very that can you read that to foreclose the possibility that one structure can perform the function in both areas and i would i would submit neither party said that it's a circumstance where there's a physical separation  in the pre law connection they wanted to be blocking ring fifteen plus taper twenty one and are to speed with that was we were saying that twenty one refers to the second pre law kariya which is the area of the body wall that fits the patroons during the gauge me and that fifteen the ring structure fifteen is necessarily included in the area that was the debate with the course seems to have said by referring to one passage and come three of the patent that she find radar but i think so you look at her analysis and say that's getting back to night my point there's only two ways to construe separate issues in holding in your findings and one is to say that there is no physical overlap between the areas which is has not done that there is that's what i'm saying there is that there is nothing it's her sole citation to the patent it's column three and it does not stand for the proposition for which she cites it it does not call out a separate claim structure  the end of the ring closer to the closed end of the capsule the angle changes to make it asymmetric as opposed to symmetric so what we're saying is the specification primarily has taught  that one ring that in the permanent lock serves as the counter locking right and that is the holding rate and you make it symmetric or asymmetric by altering the arc you have a line on the back and closer to the closed end of the capsule that's that's role in creating the permanent walk the body of the accused capsule differs from the claimed invention in that it uses precisely the same walking ring to create both the pre walk and permit walk as to the number of prior capsules there's a discussion there of figure three that figure shows the force between the body and the cap at the castle as a function of their relative displacement when they're told apart from the pre war position now at column eleven a line fourteen the specification states prior art capsules show a sharp increase of the required force at four millimeters displacement which may result in the separation  this is due to the resistance for which the patricians of the known capsules must overcome when passing over the locking ring and sure the patent says that the that engaging the patricians with the locking ring on the body is not specification disparages nobody meant and says it's not part of the invention that's not part of the invention and the claims should not be construed otherwise to solve the resistance and peak force problem created by the better over the permit locking the patent requires an indentation twenty one that is described alternately as a taper or a folding range and that structure offers less resistance to the  a shallow shallow or it's a shallow tapered recess that wide that creates a wider array that holds a patrol agents with less force and creates less resistance there's not the slightest suggestion anywhere in the p addressing the ports earlier comments to council for pfizer the summary of the budget absolutely describes four rings or it was precisely correct in that there was a permanent walking rate on the cap this a permanent walking break on the body that matches that there is an additional ring holding the ring that holds the protrusions that's described as wider and as a district court pointed out those are those correspond to the two different claims on it's directed to the always some additional structure twenty one of often be on it with its present on the capsule in the way a permit walking route fifty eight using permanent walking rings fifteen alone is a problematic future of prior art designs the presented applicant cation claim fifteen only recited one in gauge an area on the body preview of engagement area the examiner rejected that claim and required to get additional of instead of the apple can't amended the claim to require two different gauge materials from one directed to the pre walk and one directed to the permit law so you so they meant of the claim to add a requirement for two different structures on the body of the now there's yet another very compelling reason why the judgment of not infringe and should be affirmed and that's because of the phillips fee a w h decision to reaffirm the longstanding principle that work claim is susceptible to alternative the appendix a three six seven that search appears in it and it shows that graham six seven eight was the u s counterpart of this german patent describing the background of the invention at that time the examiner made a gre shows a pretty walk created by for true jand which are called indent means twenty four that engage exactly the same groove on the body nine hundred eight that services the per minute walking right now at page eleven of its reply brief pfizer makes just two arguments to try and distinguish right the first way pfizer tries to distinguish brands by arguing that the protrusions are not quote unquote you want gated but that graham  actually along gated the in the same column at column for line thirty one it says two or more intense with maximum circle for rental space in their preferred so it's contemplated there there will be several that the well at one thirty six it says that the pretty true sions are brought in to gauge with the taper of the body to provide a quote unquote readily release of the law so pfizer is trying to argue in its brief that the pre lot of the graham six seven eight is not readily releasable when its own patent characterize it as being exactly that and this is really the genesis of the argument that pfizer interjected very late into the case about what engage a shipmate throughout all discovery and gauge a bowl meant what the district court said it meant but after ajax follow its motion for summary judgment moving for a finding of non infringement under age its interpretation and for a finding of invalidity under five years interpretation such that there was no claim construction under which pfizer could win this case  but still give it an argument on infringement and that position is absolutely indefensible once you get past the fact you can read numerical limitations of the claim that the wording gauge a bill should be construed consistently and is used means they're saying that it includes a limitation of twenty one point six grams that number in the specification doesn't refer to the invention it refers to what they say is the average force of prior art capsules the invention refers to supposedly fourteen point five grams of pre war force both these numbers are average numbers and the patent gives standard deviations it says that the prior art twenty one point six has plus or minus eight point nine grams of force and the invention has fourteen point five plus or minus four point one grams of force now if these are average numbers and it finds concedes that there are all large number of capsules within so under their interpretation of how would you even determine infringement would how many capsules would you want to take an average so their claim interpretation is not only contrived and indefensible it would be indefinite it could even be applied and this is the only real significance of it in the digital is that they're trying to use that to distinguish graham and we say that graham is one of many factors that drives the claim construction because the claim is anticipated over the graham our record and so they're coming up with this engagement argument to try and argue no it isn't but in fact that's not part of the claim what you say it's not part of the claim there's nothing to argue  locking ring on the body that is the feature of relevance in figure three and it somehow disclaims a locking ring after forms that will functionality as one of the problems in the prior art of departure point for the invention so it says that well because that's what the accused capsule does and that's what's going to surprise are you cannot be the claim to cover it is an absolute gross mix mis characterization of figure three as we point out in our briefs by both the expressed language of the headings and legends within the figure three as well as the specifications description that it is talking about a comparison between the known protrusions in the prior art and the elongated patrician he's claiming talking to success has nothing whatsoever to do with the locking nothing i want to mention briefly their power history disclaimer argument there is absolutely no statement in the prosecution history there uttered by examiner or by the prosecutor that would allow them to make a file history disclaimer i mean in the absence of that they interject their speculation