turning to the four four three patent if the commission were bound by its own claim construction twice articulated in the record as opposed appendix forty five and forty nine as the portion of the slider that spreads apart the track to open the back and press that would conceive its own point construction argument and simply apply that unchallenged think construction to the its use lighter and doing so reduces the issue in this case on that patent to one question are the rectangular rids outside outlined in yellow on page sixteen of our brief in the picture of the accused product are those ribs part of the spread or if they are and because into class expert admitted on page eleven forty five of the appendix that there is a channel through there and because the commission rejected interplast argument that the spreader had to also push apart the track and have a channel all the way through the spreader then that that slider infringes the claims commission found on infringement because it found that those ribs were analogous to the ribs twenty six and twenty eight of the patented product but that wasn't the question the testimony instead was that those ribs were analogous to the flanges thirty one and thirty three of the patent product which were indisputably part of this rather that's the question the chemistry the commission needed to answer that's the question on which there was abundant testimony and that's the question that the commission ultimately ignored first in three places on the record they just eleven forty one pages eleven forty eight to forty nine and page eleven fifty one into plastic spurt at mit's that those flanges thirty one thirty three close the track when moving in one direction and with the assistance of that middle finger thirty two open the track when moving in another direction second on page one thirty three of the record in his direct testimony he states that the proper construction of the spreader has three parts those two flan one and thirty three and that separator finger finally pressed those expert on page nine zero four of the record so that those rigs and you q's product do exactly what those flanges do and in fact are necessary because they provide th the proper peeling force to guide the track to that wedge and spread them they are necessary in order to have the spreading function the commission's non infringement analysis is comprised of three sentences  he says with relatively thicker and stiffer material such as the engaged interlocking zipper elements it is necessary to provide a mechanical constraint in the form of the side flanges to help concentrate the stresses and then he says further nothing in the pattern requires distinguish taking the claim construction that hasn't been challenged and if we just apply the claim construction that hasn't been challenged as the portion of the slider that spreads apart the track to open the back and apply that to the accused product that's the analysis that the the commission never you challenge judge essex's willing and maybe even before when you were arguing to jessica you never said that even if you just assume that thirty one and thirty three were  constitutes the sweater that the the little ribs or whatever i don't know what those numbers are getting any more than they actually are part of this record because they help do the opening so i'll stipulate to that i still wi conduct in conjunction with that wage and we always take the position that those ribs are are for guiding and aligning and providing that steep angle the same way and without without reference to any particular claim construction there we're saying exactly what they do in the claim construction that the commission adopted was the portion of the slider that spreads apart the track to open the back the construction that we advocated where the protrusions on the underside of the slider that contribute to spreading apart the track and we're saying those are close enough and infer all intents and purposes here we're going to say identical and so the argument was the same concept and this court has said that you don't win if you say or rather isn't that what we are so at the very bottom and then so we say we're saying ok the commission has said those rigs can't be part of the shredder because they close and going into that paragraph into the next page we say what the id misses however is that this is the exact and at the end at the bottom of one nine seven three we identify the initial determination says no those those rigs can't be part of this writer because they have a closing function and in the next paragraph they say that misses the point the exact functionality of the wedges  is what the commission said no those ribs in the accused product are really twenty six and twenty eight i see three and what we're saying is that's not the question because what the commission needed to address was the testimony that the act is thirty one and thirty three in figures five and six and that is what all that testimony was about that i just cited the commission's entire analysis something sixty three of the appendix is three sentences that can't and it centrally they say it can't be twenty he testified they have is that right he testified they have a closing function and he expresses that they're not part of the right he said they're not part of the spreader because they have a closing function which is which is a non se fundamentally inconsistent with everything the patent stands for to say that the parts can't have both a closing function and an opening function affect your identifies when just thirty one in thirty three is doing just that so when the when the commission and the expert says it can't be part of  or because it has a closing function that's not sufficient the question is whether it has a closing function or not does it also have an opening function and here the evidence was let's just look at these rigs and say they have a closing function and of taste and that's not there was contribute and that's what they claimed that there wasn't a logical link between why they said that an actual opening what they said was they only have a closing function therefore they're not part of the spreader and for the record and finding one thing that supports it you have to address that and the evidence to the contrary under the administrative procedures act this is an administrative decision and the court ignored all of the testimony about the get out the analogous ribs to the  thirty one of thirty three and around you know thirty two the finger when it's that's not i think as i understood your brief you said that's not actually for opening the actual opening doesn't occur until after the set up and stop for the slight or it stops it from sliding off the baggage it's like to love to close the back as corresponding figure thirty eight you get in that same part of the record in the specification column six and then expect one seventy four that stops you from sliding off to the right as you open the bag so that this morning we heard mostly or maybe even only an argument that wasn't any wasn't contesting the claim construction as i understood it but rather was arguing that taking that claim construction and given the accused product has things that serve that same function name which would be analogous to twenty six and twenty eight in figure question one eighty eight saying the country you know what they ignored was right before that i have it outlined here in the middle the paragraph he says expressly beside flanders hold  every element of slighter is distinctly described and shown in the figures there's the roof twenty six twenty eight is the fingers through the spreader everyone has every one of these elements have a different function they cannot just say that everything contributes this is just a explained the ribs are not part of the spreader in claim one so any space between those ribs does not form a channel through the spreader as required by claim one in fact a four for three pad to find a space between the ribs twenty six twenty eight as the cavity not the channel the cavity tweener of the sides to allow the closure profiles one thirty one thirty one and up room to pass through the cavity is still forced the closure for files one thirty one thirty one to engage the cavity separate from the clean channel is not for the spread of a separate function instead the ribs that define the cavity forced the closure profiles such a surface position about forty five degrees from the top fall that the patent contemplate at thirty six degrees however basically claims forty fifty degrees accordingly no satisfaction of the technical prong since the missing is your product is twenty nine degrees can if you had done what you said doc trying all were for say something that feels like it makes a lot of common sense so this is a question about what's the doctrine that says says thirty to sixty they very clearly chose forty to fifty in the claims so something down around thirty just cannot be either literally about forty or equivalents what  that i mean judge essex's main point maybe the corp i mean the core point was it can't possibly be about forty or even it's a quick even if it's equivalent when that patent specification uses  thirty two in the drawings as being put to supporting in the spreading function and if you look at the specification there's only one job and one job only for finger thirty two and that's to bag and prevent the bag from stop the from interesting set of cross examination question of the figures like four through eight you know if you look at these figures in the abstract let's not really look like finger thirty two of spreading things yes part and things like that figure three hundred four when the bag of being closed it's not spreading the bag is being closed by the ribs the ribs in the patent you only have one job and that is to close the bag and the ribs and the products they close the bag that's all they do they don't spread anything one thing you're kind of walking you're missing when you look at the wrong at that there's a relief to these things of that like that spread or maybe lower and then th ribs maybe higher or something like that it all depends on on how you look at it but the drawings are all the toys that clear so there i don't want to also say that  pushing part of the track and not being a channel what they want to do is is limit the construction of the spreader to a piece that pushes the tracks apart has a channel all the way through the spreader they advocated for that on page forty five of the appendix that construction was not adopted as part of the construction of spreader so all we're left with is the portion of the slider that spreads apart the track to open the back that those other things that it has to spread it apart and have a channel through the whole length commission didn't adopt that argument  i want to which to turn to page ninety five of the appendix because we just heard mr mr hove talk about this confusion about the separator finger and what it does and i want the court to be aware of what mr shields direct while that may be true in somebody's minced exhibit example for b that is not necessarily true in all embodiments so so just toronto to your question yes it does look obvious like that's what's happening in figures five and six  to briefly talk about the prosecution history of stoppel argument for both the whole point and the top wall limitation the applicants never needed to be o t i'm sorry yes the applicants never made a clear and the claim is not and you can look all through the prosecution history of the applicants never said that claim does not have multiple hooks or the invention does not have multiple hooks and the invention cannot be oriented to the real one of a twenty nine is not close enough to forty either to be about forty or the equivalent so so your honor mr jordan's argument was well there's this dedication to the public argument the dedication to the public issue only arises once literally about greater than thirty microns in fact could go all the way down to twenty three point zero four first something was i think of the prosecution history show so they distinguished the prior or by the in the adopted a different range for the middle and existed in the trial that that was why they said that from just right so your honor that's not quite what happened in fact the of the the limitation about forty to fifty degrees was mean as well as mine when you're right your honor and that's where there has to be a clear and unambiguous disavowal of scope in other words the applicant would have had to say at some point these claims do not cover anything below about forty and what they said was you know you can't say this is different from the prior art because it is a different angle well there are all prosecution history characterizes the claim it characterizes the prior art and that's why that's why th limitation is that's the focus of case all of the evidence and in the case was that twenty nine degrees meets that purposeful from the intrinsic evidence which says something down to about thirty would meet that limitation and the extra s testimony about what is that the flesh and surface actually do and the twenty nine degrees actually works nobody disputes that so the only evidence in the case and this is the only evidence interplast put on is it can't be twenty nine degrees because twenty nine is about two  that mathematical fact ignores infringement tests what you have to do under cohesive so it's not that the commission just said well we reasonably look at the evidence and we say oh this twenty one degrees is not literal there's actually no evidence on that the only evidence was this irrelevant mathematical fact which it didn't matter here because cohesive says you don't start with the numbers you don't just look at the numbers and say oh this doesn't make sense because the numbers are two big dick you dig down deeper and in fact in cohesive the court said in that particular case we don't know whether between twenty three point zero four four and between twenty five this is at thirteen sixty eight to thirteen seventy of cohesive we don't know between twenty three point zero four four and twenty five point four whether or not that's literally greater than about microns we actually have to look at the purpose and the function that was what this court said about considering about so in this case when you look at the purpose of the function the only evidence was that yes twenty nine degrees is literally about forty because