please proceed when you're ready action as quote really confusing that's in the last full paragraph on page forty isn't it true that the really confusing comment occurred early in the mark when hearing before gen john and tex oral argument yes your honor that's correct and i apologize i did not mean to mislead the court there certainly the district court in his opinion reflects what he believed to be a clear understanding of the office action although we certainly agree with the district court's earlier comment that it was really confusing well you don't present it that way i mean how can a statement by a court about an office action at the start of a marksman hearing the evidence of the court's understanding at the end of the year the prior art contradicts the district court's construction is genetic correct you're raising this for the st time on appeal you know you're ok where where do you raise that thank you go during prosecution the other surrender that we acknowledge related to an amendment in what was claimed seven relating to derivatives comprising amino acids selected from group with random or variable amino acid sequences that has abernathy yesterday we certainly acknowledge there was an amendment from derivative to fragment generally during the prosecution the patent but it is ambiguous as to why that amendment was made and certainly nothing in the filed and in fact we think the suggestion of a disclaimer of those antibodies is refuted by the claims that actually were allowed as this court noted in the intellectual ventures vs t mobile case the requirement in a dependent enough to include by specific antibiotics under my friend's construction stopped by the district court those phrases are oxymorons aids the body by definition cannot be a humanized antibody and antibody by definition cannot anybody's are in the human body or seems to be you know that's that's one of the most important issues in this case of course our orchard view on that just told in our view it was meant to provide a general description of  occurring anybodies that wouldn't fall within yes your honor the vast majority of i g m antibodies are pentameters they have more than two heavy chains and more than two like chains although those heavy and light chains are  court included that in the construction or saying because column five is definitional and this is part of column five it is necessarily part of the construction let me take you back though because i think the district court went astray you've heard my argument about the usage of the word antibody in the defendant claims the district court treated this as a claim differentiation argument and that's not correct the argument is not based on the scope of the claims the argument is not that these dependent know imply that there is not a limitation present in the independent claim from which they depend our argument is just based on the usage of the word antibody in the claims if you took a claim one thousand dollars struck out the dependents from claim one and just made an independent claim that were cited an antibody that is humanized antibody our argument would be exactly the same that you should not adopt constructions of terms that render claims nonsensical on their face would you say that that applies to this cut off the bottom piece and you would still have an antibody fragment that would be quite specific and would wind apologize i realize that's contrary yeah look if you are going to hold simply that can merit antibodies or antibodies and by specific antibodies are antibodies we would have very little quarrel with that the main thing here is on the face of the claims not a claim differentiation argument a usage argument the word antibody is used in a way that includes humanised antibodies includes by specific antibodies it would be an extraordinary thing to affirm a decision that if they ever accused this patent against someone who made a bend to merit i g and they would say you have five infringing products but certainly them on america form is within the scope of the definition of home five and it is not our position that those were disclaimed derivatives were just asked question and i think there's also a little green meant that there was a disclaimer in the prosecution as to derivative but there's no agreement as to what a derivative is is that a fair statement to the district court said i take it that there  i think there was also agreement that there was a disclaimer in the prosecution as to derivatives but there's no agreement as to what a derivative it is that a fair state and both parties agreed yes and the district yes your honor from happen wise than the court turned to the con five language and then looked at the language of top of column six and say because refers to things that are inconsistent with that definition comerica antibodies which are arguably inconsistent by specific antibodies which are definitely inconsistent because they don't have two identical heavy chains and  did the examiner and the examiners rejection says you don't have support for antibody derivatives including by specific antibodies and it's worth pointing out that the way that one makes up by specific antibody is by taking two other antibodies cutting them in half combining them  deriving it by specific antibodies from them and so the record in this case is that a by specific antibody is an artificially engineered product in fact the district court's construction of by specific antibody which  has not challenged on appeal is that a by specific antibody is an artificially engineered macro molecular hedren by functional cross worker there's no contesting in this courtroom but by specific antibodies are artificially engineered that's the found no definition there are then looked at the claims found no clarity there look to the prosecution history and then turn to expert testimony and of course how does that is no set of facts or no explanation from either side that explains all of the fact that there is something there is something missing from each side for us to just claim for a ninety claims for contain embodiments that the examiner rejected and the district court concluded that that's all to fail to conform those claims that is the explanation that the district court concluded reviewing the examiner didn't catch that that's correct your honor there's nothing in the prosecution history to suggest that the examiner included these terms where in the word fragment does not your starting from the premise that the prosecution history amounts to a row languish meant by specific human i just kind merrick and all of these other forms of antibodies right yes you are and the district court made a factual finding that in this court is reviewed for clear or under teta that they derivative is o i believe that the subsidiary fact finding based on expert testimony is a fact finding under ten tempest pacifically actually for what it's worth the supreme court gave us two examples this happens to be one in some cases the district court will need to look beyond the patents intrinsic evidence and to control consult extrinsic evidence in order to understand for example the meaning of a term in the relevant part during the relevant time period that's exactly what the district court did here was asked experts from both sides what did the t derivative me because the parties agreed there was a disclaimer of antibody derivative a day agreement that is binding on both parties in this court and a body derivative were disclaimed the court then wanted to figure out what's an antibody or what the court experts and said how was that term used in the art did it have a meaning that's exactly what kevin goes on in the next set is to say is reviewed for clear or so where we arrive in this court is within agreement that the district if they do this report elicited agreement from the parties that there was a disclaimer of derivatives and then set out to figure out what is a derivative and the conclusion that the court reached which is a subsidiary fact finding to explain specific antibodies are antibody derivatives because one makes each of them by making a material change to a column five antibody that is completely consistent with every part of the prosecution history but the part that your daughters are struggling with which is why are they still in the clinic and so they just record ask the question why are they still in the clinic and concluded which i believe is refuted over to be clear that by itself to fail to conform to the claims and that the examiner allowed them and the question is does the fact that the examiner rejected them yet there in the claim yet they match what facts all to conceives they disclaimed allow them to recover the scope and another broken win antibodies we wouldn't be standing in front of your honor but they have agreed they disclaimed derivative and asked the district court as did we to figure out what is a derivative and haven't challenged the fact finding of what is a derivative so they just record found that a derivative is a significant change to an antibody from column for off i think that's not challenged on appeal you said i thought if there is certainly no place where they say i mean it's based on their own experts testimony i'm not sure how they would mount a clear or challenge to it but there's certainly nowhere where they say that finding was roll i don't i mean we're here to me pointing the record where that was a derivative is anything cha nged from any antibody absolutely five on page eight forty five in the district court's opinion carry over settings says the antibodies of the present invented can be prepared by methods known from the art by conventional hybrid oma techniques or means of face display which he says that settlements is inconsistent with the column five definition i would the language in column five has all the in disha of a definition beyond merely the word is i just want to make the point that in the cases like abbott where you're applying a higher standard for lexicography something that came up two arguments ago about more than one plain ordinary meaning in  by and so when looking at the language in column five in addition to saying antibodies or and that's alter would like to read it to say antibodies include or some antibodies are which it doesn't say it's as antibodies are there is airing everything out if you're going to say that anybody has different meanings in different contexts yes why would you look at the entire specification which has many different examples of anybody's or the claims even which are i think the original claims as they were originally presented so they're actually part of the original specification right so why would we look at that and say the word anybody in the context of this entire specification prosecution including after derivatives dropped out that changed to where the end the body is a humanized antibody and i can see the vast claim and claim for are inconsistent with the notion that column flight is a definition of antibody that's the part that's the fact that doesn't fit from our and the fact it doesn't fit from there and is what did they disclaim because what you just heard is that in changing the meaning of the word and to derivative to fragment in claim one somehow the only thing they did was claim change claim seventy eight dollars twenty one cents but it somehow had no substantive effect in the claim in which it was made and that is what the district court found was not a plausible explanation that backs all to having been the party that prosecuted this still can't say what the change from derivative to fragment met and so each of us stares at a part of it that we don't have a good answer for my explanation for a claim for any claim nineteen is that those were rejected as the district court concluded  those claims if the court starts with whatever is in claim for has to be within antibody then the court is quickly going to conclude that column five is not definition i can see that however this court's cases teach that you can't do that the dependent claims you don't look at the plane claim language st st but then the same case says and then you look at the specification and this court has said it could be for one moment so i can get the exact case in north american that  dependency argument or time or whether it's a look at the language the claims turn to understand what the patent owner inventor meant by that claim language do then how does that in fact whether we're allowed to look at the pen claims to see how the inventor used the words i think you are allowed to look at the pentagon to see how the inventor used the words i think you have to look at all of the claims for that purpose i agree with that but i don't think that that means that i meant to take the north american vaccines case you have an independent claim to d a contribution of a sugar to a protein without significant cross linking and the question is does that mean cross linking on the same protein or between two proteins and you have a dependent claim where everyone agrees you would have between two proteins and yet the court says that's not what claim one where that's not true i have the number right that's not what the independent claim means and so we have dependent claims that give us evidence about what the term means we also have a rather complicated history in which those embodiments were rejected and there's no moment when the examiner says you know what you're right i think you do have support for those in fact back salters argument after the rejection of them wasn't about by specific antibodies at all and so we don't have an answer to why they're there except that they stood rejected and somehow that allowed and that happens and this court's cases teach that sometimes you know this court invalidates patents of the examiners granted you know every day sometimes mistakes get made and the answer cannot be that having failed to inform the defendant claimed they get to recover that scope but i think that is the central issue if you start there you end with home five not definition but what about column si definitional but i think that that's completely consistent with our argument because what that says is the end vented antibodies end to body derivatives and organic compounds derived from their from forgive me comprise and then there's a list of  derive them from other antibodies but the term in the art for that is a comerica antibody in the same with the dry ice isn't ice in this patent a generic and the body is an antibody derivative but not an antibody what about the and i think this is referred to below and i know is referred to in the breeze at the bottom of column seven yes it says the embodies the present invention can be very very methods known in part by conventional techniques and i think that these techniques including fake displayed gene we are told that what this is referring to is something where you would probably classified as a derivative i think that's right your honor that's actually the point i was trying to make earlier i'm glad we came back to it if you're out of reach the next sentence the next sentence says the production of the inventive antibodies and antibody derivatives made for instance that paragraph is talking about both the for instance in the nd sentence makes that clear i agree that the word derivative is not in the st sentence of the paragraph but the whole paragraph is talking about both that is the one moment in the patent when something that is inconsistent with column five being definitional is said and the next sentence takes it back i that that but that sentence should read the antibodies and derivatives of the present and mention it as all of the ones that preceded and follow it do i hesitate to say that that's a typo but the next sentence makes clear by virtue of the for instance that that sentence is talking about how to make both is what my friend didn't suggest was taking a look at how the word derivatives is used standing alone in the patent and i do think that's helpful to look at column twenty it's probably the best pais place to look to  dollars thirty five cents and then has almost the exact same almost the exact same definition with the similar e g a column six for anybody fragment just wanted to see something similar in column thirty actually if you look at lines fifteen again these are fragments what you don't see is any reference in either the file history or in the specification to antibody derivatives such oh no where in here does it say anybody derivative either in the final history or can specification that all by specific antibodies are antibody derivatives my friend says these claims were rejected we disagree vehemently the examiner never said i reject language because this is so if you look just a couple of pages back you'll see that's this is where we have a phone call with the examiner the examiner suggested the amendment and in my friend's view the examiner suggested the amendment in order to overcome the enablement rejection i think if that's correct what this would say would be as discussed on the call we have given up the broad claim to anybody derivatives and now as you suggested claim only anybody fragments that overcomes the enablement or this is where if you were looking of the is not an antibody fragment using the definition of antibody from the specification so the whole reading of the prosecution history is premised on the idea that this definition types of antibodies i don't believe so you are because of the where and where in the antibody derivative is those and again in our view we've always accepted that an antibody fragment which everyone agrees is at least a subset of derivative can be time eric can be a time eric antibody can be humanized antibody can be a by specific antibody but our view is that the examiner didn't reject antibodies that w antibodies humanised antibodies and by specific antibodies you know my my friend and i draw different inferences from that he suggests that because there is no reference to the examiner rejecting antibodies that were by specific antibodies that means they weren't claimed we draw the inference that they were claimed and not rejected as not enabled the prosecution history doesn't answer that except for the fact that the claims were actually allowed me yes we have different arguments i'll admit the prosecution history is ambiguous he can make arguments based on but st disclaimers a high bar it requires a clear and unmistakable disclaimer arguments on the face of the claims themselves phillips tells you that you look to the claims and sometimes just how  word is used in the claims can be a strong basis for constructing them it's not a claim differentiation argument my friend suggested it's just a usage on the face of the claims argument and here it is for court found the construction we proposed was an ordinary disclaimer justifies adopting a construction that renders these claims nonsense on their face and the claims should trump the prosecution history there's a hierarchy here and you cannot simply say these claims were issued i