There are two cases being submitted on the brief, namely appeal number 06-7035, furnished versus Department of Veterans Affairs, and appeal number 06-3125, Powell versus Department of Justice. Before taking up the argument calendar, there are two preliminary pieces of business. The second is a motion for admission to the bar of this court, but the first is just a historical note that I want to recognize the fact that this panel, which like all our panels, is drawn at random by the computer, happens to consist of three judges who are or were chief judges of this court were the predecessor court of claim. So you have an all chief judges panel. On the motion I'm going to be the movement, and so a judge mayor will preside. May it please the court. I move the admission of Claudia L
. Davis, who is a member of the bar in good standing of the highest court of the state of New York. I have personal knowledge of her credentials because she has been one of my three law clerks for nearly a year now, and I work with her on a daily basis. On the basis of that experience, I am satisfied that she possesses the necessary qualifications for admission to the bar of this court, and I so move. Thank you chief judge Michelle. Your motion is graded. Please step forward and face the clerk
. And on behalf of the chief judge and the other judges on the court, let me congratulate you and welcome to the bar of the court. We hope to see you back at the court from time to time and social functions, and the fewer times you appear in court, the better. On the argument calendar, the first case for argument is appeal number 05-1060, automotive technologies versus stealthy, but preliminarily there are two matters before we'll hear from Mr. Baniak. The first is that there's a motion for three demonstrators to be admitted. It's the understanding of the panel that the motion is objected to in part because it is late, and perhaps also because as I understand it, the device was not part of the summary judgment record
. And so the panel has decided to deny the motion. Of course, as to the patent language, we have the language in the papers before us. And as to the device, we have various indications of what it looks like and how it works in the same paper. So the motion to use the three demonstrators is denied. Secondly, there is a cross appeal, including a gray brief of the appellee, and from the examination of the cross appeal and the relief requested, it seems clear to the panel that no part of the judgment is sought to be amended by the cross appeal. And therefore, we rule that the cross appeal is out of order
. So the second gray brief, the appellee's gray brief, will be ignored, and the argument time will be adjusted so that there'll be no rebuttal time, but you'll have the full 15 minutes of Mr. Forbist for your appellee argument and defense of the judgment. And now we're ready to hear from Mr. Bennyak. Welcome. Good morning
. Please proceed. Good morning, Your Honours. I'm going to approach claim 10, initially. The district court defined the invention broadly, but the district court did not define the invention broadly enough in view of the specification, and in view of the claim language itself. Actual position, which the district court inserted into this language, relative to an airbag door has no business in this claim, and it's not required for occupant position determination in claim 10. Occupant position determination is to be done in part by weight, and we'll keep that in mind as we go through here
. The invention as claimed and properly construed is more broad than what the district court said. And I think what happened is the district court got lost in some of the other embodiments of the invention, not just position determination, but weight distribution, and that weight distribution analysis that the court did seem to carry over into not only claim 10, but also in claims 2 and 6, which are upon appeal. We have a spectrum here before and put the invention in perspective before this invention, either your airbag went on or didn't in a crash. Now it was determined that that was not necessarily a good thing to happen because you could be out of position relative to that airbag actuation. So the inventors came up with many ways to discriminate from a very, very broad, gross type of determination of position, position, to decide in some circumstances deploy or not to deploy. And that's what's on appeal here
. That's what claim 10 is directed to from a positional standpoint. Do we do not actuate the airbag in some circumstances? Yeah, but that's not in the claim language. The claim language that seems to be central here is the language about determining the position of the occupant. Yes, and I totally agree with you, Ron, on that. And you see nothing in there that is being determined relative to anything in particular relative to an airbag door or relative to anything else. What it is being determined is relative to where the occupant was previously sitting
. Keep in mind that the infringing device, the pod system, constantly checks one one hundredth of a second, is checking to see where you are. So your honor, for example, means toward me. Well, I'm not worried about how these things can work or what the accused device does. I'm trying to focus on whether the district judge aired and construing the word position in its normal sense as being relative to some fixed point of reference. I don't see anything on the face of it wrong with saying that the position of the occupant of the seat has to be determined relative to something and the airbag door seemed like a perfectly appropriate reference point to me. Where's the problem in that? The problem is your honor that the invention is far broader than that
. Throughout the specific case. What we're talking about the invention. We're talking about one claim with specific phraseology in it. That's the phraseology that was construed and it's hard for me to see what is way off about that. What is erroneous? What is illogical? What is silly? What is unreasonable about saying determining the position means the position relative to the airbag door? Particularly since the whole purpose of this invention is to make sure that when the door opens and the bag comes out that the person is in a safe position, relatively safe, and therefore that if it's turned around the door won't open. So I mean it's meaningful only in terms of where the bag is coming out
. You look at claim tenure-runner and there's nothing with relationship to a bag coming out of there at all. It's a positional situation with regard to doing something. Now one thing and one thing in point because of the infringement problem. But that's the first thing. It may be nothing in the claim language itself with regard to the airbag but certainly the specification makes crystal clear what the purpose of this invention is, doesn't it? It does but we have to look at it more broadly than just the deployment of an airbag and for example to get to your point your honor. The actual position is too precise. The court has injected too much precision into what is otherwise a very very very broad claim and a broad perspective on the invention because I was saying as you mean the court didn't say anything about precision. It didn't say that determining the position means determining the position within one tenth of an inch. Nothing like that was said at all. The court's construction simply said that determining the position meant to show the alignment of the body of the occupant of the seat by reference to the location of the airbag door. I still don't see what illogical or foolish or erroneous about that. The problem with that construction in your honor is that you don't need to know the exact position, the actual position of the occupant of the seat to insert and circumstances determine whether I deploy or don't employ the airbag because I put a transducer in your seat you lean toward me
. The court has injected too much precision into what is otherwise a very very very broad claim and a broad perspective on the invention because I was saying as you mean the court didn't say anything about precision. It didn't say that determining the position means determining the position within one tenth of an inch. Nothing like that was said at all. The court's construction simply said that determining the position meant to show the alignment of the body of the occupant of the seat by reference to the location of the airbag door. I still don't see what illogical or foolish or erroneous about that. The problem with that construction in your honor is that you don't need to know the exact position, the actual position of the occupant of the seat to insert and circumstances determine whether I deploy or don't employ the airbag because I put a transducer in your seat you lean toward me. I know what your weight was to begin with as you lean and put your elbows onto the podium in front of you you have changed your weight. You go below a certain threshold I know that that is a dangerous condition. I don't need to know your actual position. All I need to know is you've gone below a threshold. That's just the goal of the invention. I'm trying to understand the meaning of language chosen by the inventor for this particular claim, one of many claims in the past
. I know what your weight was to begin with as you lean and put your elbows onto the podium in front of you you have changed your weight. You go below a certain threshold I know that that is a dangerous condition. I don't need to know your actual position. All I need to know is you've gone below a threshold. That's just the goal of the invention. I'm trying to understand the meaning of language chosen by the inventor for this particular claim, one of many claims in the past. And what I'm describing to you is a scenario where you do not need to know why that just tells me that he could have used different language and still captured invention. It doesn't tell me why the district judge's construction of the phrase determine the position is wrong. Well it gets down to the use of the word actually your honor and the way that the court ends up applying that word to the infringing product is to make it very positionally accurate. I need the problem that we've been having with this construction. The reality of the claim is and the words that are actually used in the claim and what the specification describes is something far broader than I need to know that you are leaning out of the car with your head in the wind. I don't even know the specification speaks to all the claims
. And what I'm describing to you is a scenario where you do not need to know why that just tells me that he could have used different language and still captured invention. It doesn't tell me why the district judge's construction of the phrase determine the position is wrong. Well it gets down to the use of the word actually your honor and the way that the court ends up applying that word to the infringing product is to make it very positionally accurate. I need the problem that we've been having with this construction. The reality of the claim is and the words that are actually used in the claim and what the specification describes is something far broader than I need to know that you are leaning out of the car with your head in the wind. I don't even know the specification speaks to all the claims. How it relates to other claims isn't important. It's only how it relates to the language chosen by the inventor here. And what we're saying your honor is this is a relative position and that's the language that we cited to in the specification with regard to a position the beneficial effects thereof where the occupant can maintain the restraining effects of the occupant protection apparatus. A little wordy but it gets to the concept that what we're dealing with is a relative positioning of the occupant. Not an action. I don't understand what you mean relative position
. How it relates to other claims isn't important. It's only how it relates to the language chosen by the inventor here. And what we're saying your honor is this is a relative position and that's the language that we cited to in the specification with regard to a position the beneficial effects thereof where the occupant can maintain the restraining effects of the occupant protection apparatus. A little wordy but it gets to the concept that what we're dealing with is a relative positioning of the occupant. Not an action. I don't understand what you mean relative position. Is the claim some position and with respect to what item if any do you think the position should be determined? No no reference point at all? No your honor I think there should be a reference point but I think the reference point is a relative one and that's why I've chosen those words very carefully. I don't know what you mean by a relative what you mean it varies from moment to moment. Exactly. I can tell where you're sitting right now I can also tell when you've moved outside and rained which is unacceptable. That's what this claim is directed to. I can tell when you moved you positioned but I don't need to know where your actual position is relative to anything other than where you were before and that is the broadest and the interpretation that should be given to this particular claim
. Is the claim some position and with respect to what item if any do you think the position should be determined? No no reference point at all? No your honor I think there should be a reference point but I think the reference point is a relative one and that's why I've chosen those words very carefully. I don't know what you mean by a relative what you mean it varies from moment to moment. Exactly. I can tell where you're sitting right now I can also tell when you've moved outside and rained which is unacceptable. That's what this claim is directed to. I can tell when you moved you positioned but I don't need to know where your actual position is relative to anything other than where you were before and that is the broadest and the interpretation that should be given to this particular claim. There's been no disabondled. Do you think it should be relative to the position occupied immediately before? Yes your honor exactly and I think that's what's eventually changing. It keeps changing as the car is driving along because as I'm steering if I steer the right I may move my body slightly. That's right and in an embodiment of the infringing device that is what happens it detects there's changes and then if it goes below a certain threshold then it indicates that there's a problem the bag should not actually. I do want to touch on one more things since I have some rebuttal time too and that is claims two and six. If you go back and the only reason these claims have been found in valid is because the court determined that there was no priority to the 707 patent
. There's been no disabondled. Do you think it should be relative to the position occupied immediately before? Yes your honor exactly and I think that's what's eventually changing. It keeps changing as the car is driving along because as I'm steering if I steer the right I may move my body slightly. That's right and in an embodiment of the infringing device that is what happens it detects there's changes and then if it goes below a certain threshold then it indicates that there's a problem the bag should not actually. I do want to touch on one more things since I have some rebuttal time too and that is claims two and six. If you go back and the only reason these claims have been found in valid is because the court determined that there was no priority to the 707 patent. You look at those claims it is identical between figure five and the 707 parent patent and figure 12. You find two containers as expressed in the 707 the judge concluded that those two containers were chambers that met the definition that met what was in claims two and claims. Yes, somebody said they're not in different locations on the seat. Ah but they are and I was thinking of this yesterday was at the airport I was eating a nectarine all right I eat that nectarine there's a pit in the middle of that nectarine that is clearly in a different position from the fruit that I'm eating around it otherwise I would crack a tooth biting into it. The judge was not thinking in terms of what could be three-dimensional shall we say a three-dimensional contract again but don't but what he found to be new matter in the patent that's being asserted here was the location in four quadrants of the seat of these separate containers with separate transducers to to reflect the weight or pressure. And the judge was looking for something like that in the 707 patent
. You look at those claims it is identical between figure five and the 707 parent patent and figure 12. You find two containers as expressed in the 707 the judge concluded that those two containers were chambers that met the definition that met what was in claims two and claims. Yes, somebody said they're not in different locations on the seat. Ah but they are and I was thinking of this yesterday was at the airport I was eating a nectarine all right I eat that nectarine there's a pit in the middle of that nectarine that is clearly in a different position from the fruit that I'm eating around it otherwise I would crack a tooth biting into it. The judge was not thinking in terms of what could be three-dimensional shall we say a three-dimensional contract again but don't but what he found to be new matter in the patent that's being asserted here was the location in four quadrants of the seat of these separate containers with separate transducers to to reflect the weight or pressure. And the judge was looking for something like that in the 707 patent. Well why is it not perfectly correct? It's it's not perfectly correct around it because there are two chambers as the court construed the figure 12. Well now when you put the problem I have with that is that on page 10 of the red brief they quote from the specification in the 504 patent in which the patent T describes figure 12 which you said is identical would you agree is identical to figure five in the 707 patent as having a single chamber and then they show in 12 a the four chambers so having the patent T himself having construed figure 12 or figure five as showing a single chamber on what theory do you say the district court should have recognized that that contained two chambers because the applicant the patent T was saying I said I'm talking about a single bladder that's located in 518 or 515 a single bladder it did not say that I don't have two chambers which is exactly what shown in 518 and 515 in the 707. Well I did the first sentence of that in the specification says in figure 12 the air bladder or bladder 515 which interacts with the outgampened is shown with a single chamber that's right it is but it doesn't say anything about 518 does it your honor and that's the other chamber for figure 12 a which composes to multiple chambers that's correct yet you I take it you're saying despite that figure 12 shows multiple chambers figure 12 shows multiple chambers because there aren't two chambers they interact fluid goes back and forth between them that's how they work that was in the 707. It seemed to me if what was intended was that the portion of whatever you want to call the container the inner portion was a separate chamber from the outer portion well after that to say that the second chamber is within the first chamber they are shown that way and the applicant used the container and show what the claim says well the claim your honor is shown specifically look at the words of the claim you can find every element of that claim in the 707 figure 5 it's all there and what's the what's the strongest evidence that an ordinary artist in this field looking just at the figure in the 707 patent would say that it discloses what figure 12 a in the asserted 504 patent claim two chambers shown in the 707 and I don't know what evidence I mean that's the evidence your honor there it is looking at it we also have a I can't look at it I'm not an auto seat designer I can't look at the figure in the earlier patent and say whether it describes and enables the later invention underbutted declaration of an expert that we submitted wrong and Dix who said that's exactly what it shows to change what page what language look through all these briefs for the actual critical evidence it couldn't ever find it well your honor that is in the declaration of wrong and Dix and I believe we've cited it in our principle brief I can find that now come back to you with that answer then I'm very good and you have a minute and a half of Roboto Romani thank you mr. Browneck mr. Forbys my name is one forbys I represent Delphi in this in this case all dress clean 10 first since been addressed first by you know my opponent the patent in clean 10 talks about determining the position of the occupant of the seat the pods B doesn't do anything like that the pods B is the classified and occupant as an adult or child it's not good I thought that the infringement issue is in effect conceded by mr
. Well why is it not perfectly correct? It's it's not perfectly correct around it because there are two chambers as the court construed the figure 12. Well now when you put the problem I have with that is that on page 10 of the red brief they quote from the specification in the 504 patent in which the patent T describes figure 12 which you said is identical would you agree is identical to figure five in the 707 patent as having a single chamber and then they show in 12 a the four chambers so having the patent T himself having construed figure 12 or figure five as showing a single chamber on what theory do you say the district court should have recognized that that contained two chambers because the applicant the patent T was saying I said I'm talking about a single bladder that's located in 518 or 515 a single bladder it did not say that I don't have two chambers which is exactly what shown in 518 and 515 in the 707. Well I did the first sentence of that in the specification says in figure 12 the air bladder or bladder 515 which interacts with the outgampened is shown with a single chamber that's right it is but it doesn't say anything about 518 does it your honor and that's the other chamber for figure 12 a which composes to multiple chambers that's correct yet you I take it you're saying despite that figure 12 shows multiple chambers figure 12 shows multiple chambers because there aren't two chambers they interact fluid goes back and forth between them that's how they work that was in the 707. It seemed to me if what was intended was that the portion of whatever you want to call the container the inner portion was a separate chamber from the outer portion well after that to say that the second chamber is within the first chamber they are shown that way and the applicant used the container and show what the claim says well the claim your honor is shown specifically look at the words of the claim you can find every element of that claim in the 707 figure 5 it's all there and what's the what's the strongest evidence that an ordinary artist in this field looking just at the figure in the 707 patent would say that it discloses what figure 12 a in the asserted 504 patent claim two chambers shown in the 707 and I don't know what evidence I mean that's the evidence your honor there it is looking at it we also have a I can't look at it I'm not an auto seat designer I can't look at the figure in the earlier patent and say whether it describes and enables the later invention underbutted declaration of an expert that we submitted wrong and Dix who said that's exactly what it shows to change what page what language look through all these briefs for the actual critical evidence it couldn't ever find it well your honor that is in the declaration of wrong and Dix and I believe we've cited it in our principle brief I can find that now come back to you with that answer then I'm very good and you have a minute and a half of Roboto Romani thank you mr. Browneck mr. Forbys my name is one forbys I represent Delphi in this in this case all dress clean 10 first since been addressed first by you know my opponent the patent in clean 10 talks about determining the position of the occupant of the seat the pods B doesn't do anything like that the pods B is the classified and occupant as an adult or child it's not good I thought that the infringement issue is in effect conceded by mr. Baniak if the judges claim construction stands and that the attack was on the claim construction itself so if that's right then for you to discuss how the accused device works doesn't really advance the ball because he agrees that if the claim construction stands so does the judgment okay your honor my point it will hit the claim construction first them position of the occupant those are the words of the claim it doesn't say determining if the occupant is out of position out of position as a term of art that was used in the patent specification it has a defined definition with it it talks about determining if the person is out of position what what what's your answer to his specific argument that the relative aspect of determining position of the occupant is time it is it what you're looking for is what's his position now versus what his position was a half a second ago rather than relative to a fixed reference point in the car such as the air bag door your honor there's no teaching whatsoever in this patent that position determining position means relative to a prior position this patent discusses determining the position of the occupant using a weight sensor plus other sensors like ultrasonic sensors well he he gives the example that if he's the passenger in the car and he's seated squarely in the passenger seat certain weight will register and that if he then a half a second later leans forward the weight registration will reduce and that this will signal a change in position that's important to whether the air bag can safely deploy or not what's your answer to that there's two answers to that your honor the first answer is this in terms of claim construction there's nothing in this patent that would support such a claim construction but now what you're going to is the infringement question because you're asking about how does the pod system work the fact of the matter no no no I'm asking about how the claimed system works because that's what auto inform how the words of the claim are construed your honor this court in the Phillips case has said look at the patent specification we know we know we know what we've said in those case the patent specification discusses determining the position of the occupant uses the terms relative to an air bag and we've said it in our brief it's relative to something to a fixed point the concern here is are you too close to the air bag or you don't have to close the air bag in this patent it's when you're determining the position it's not about where you were last and that's all I can say there's nothing in the patent specification that the specification explicitly states the position of the occupant is to be determined with respect to a fixed position those those words are not used but here's what is you here's what issues your honor and I'm quoting from the specification it talks about sensors being used to determine where the the occupant is in the in the seat and it says this along with the occupant the location of the occupant relative to the air bag is then to be used to determine the amount of gas which is to be injected into the air bag during the employment it uses the phrase relative to the air bag in the specification furthermore the inventors testify that that's the proper definition and in deposition we say to that number is and their own expert said that's precisely the definition to use and I quote dr. Diggs he says it sounds like you're talking about the the operational pressure of the air bag varying according to the position of the occupant that's one that's one aspect of it but but opposing council is arguing that the critical function here is deploy versus don't deploy and if the passenger is leaning very close to the dashboard there's danger if you do deploy and therefore you want to prevent deployment if the passenger is in that posture but allow deployment if the passenger is in a more upright posture fair enough and if that's the object that is that is precisely the definition that the court gave it and they were proposing which is determining the position of that occupant relative to a fixed point that is the air bag door if there's there's no suggestion here that the in the patent that all you're determining is where you're sitting one inch closer or one inch further away no that's that's perfectly true and we agree that the relationship between the air bag door and the face of the pastors obviously very important the whole safety dilemma here if the face is too close to the air bag a person could get to broken nose or broken neck or something and perhaps like that but but the problem is if the weight if I'm sitting in the seat and the weight registers my full 170 pounds and then all of a sudden the weight registration drops down to 100 pounds that would seem to be a signal that I've leaned way forward and therefore I'm in danger of being too close to the door so why isn't Mr. Bannyak's definition of relative position over time have some sense to it you're on it go back to the specification the specification don't go back to the specification answer my question if it registers my full 170 and suddenly it drops to 100 doesn't that suggest I've leaned forward and therefore the bag shouldn't deploy no it doesn't it it it could mean a number of things if you've got a single pressure transfer that's measuring the pressure of a bladder it could the change away could be due to a number of things the person could be leaning on their armrest not leaning forward the person could have refined the back the seat back and less weight now is on the pressure bladder the person could have lifted himself off the seat but is still in the same position relative to the other but the claim can allows for that by saying that based in part on the weight of the occupant so the claim acknowledges that there are other things you have to consider absolutely but that relative weight over time would be one of them according to Mr. Bannyak and I don't see that you've shown that that's a silly well your honor there is there is nothing it says determining the position of the occupant based upon the weight sensing the weight sensing device okay determining the position it's impossible to determine the position of the occupant based upon a pressure reading alone there's just no there's no possibility to do that with a weight sensor and a single transducer alone yeah but the claim doesn't say alone it says at least in part on the determined weight of the occupant that's the exact language at the conclusion of claim 10 yes your honor if we can if we're going to extrapolate the position to mean beyond the scope of the specification beyond the scope of the claims we could you know can sort it basically be anything but the specification limits position the claims that he didn't suggest it could mean anything he suggested very specifically that it would mean relative to what the position was split second earlier well let me just conclude this your honor I think that that's a turning argument there's nothing in the specification there's nothing in the normal ordinary meaning the word there's nothing in any of this pattern that would suggest that was the definition except for what has been argued by the attorneys we spent a lot of time on claim construction of position but let me just say this I think all of this claim construction issue and position is an effective red hearing because the pod system doesn't have anything to do with determining the position of the occupant even if it was from one point to the next the pod system classifies an occupant as an adult or child based upon that weight irrespective of a position without regard to position and ignoring position that's the government regulations that's what the pod system is required to do it wants to know is that an adult sitting in the seat or is it a child because it doesn't care where that person is sitting the pod system doesn't where that person is sitting all it cares about is do I have a child or do I have a small adult but that doesn't the pod system continuously or with high frequency I more precisely should say measure the weight it does continuously manage the pressure the reason and that can correspond to the effective way to the occupant that's that plastic bomb it could be calculated from that although it isn't but yes it's continuously measuring the pressure why because it wants to make sure that the person isn't getting out of the seat and getting into the back seat or changing drivers or what have you that's why it's continuously measuring but it does not determine position at all but but but my point is if his definitions were correct then it seems to me that would cast great doubt on what you're saying that your system clearly couldn't infringe in any event under any construction it looks to me like if we accepted his construction and maybe we shouldn't but if we did it looks to me like it might be a pretty close issue whether the pod system infringe absolutely not your honor if under this in the specification as you said and as the inventor said you can't determine position from a single latter single pressure transducer and you yourself said the specification contemplates other types of sensors they're to determine position there's nothing else in the pod system there's no other sensors there's nothing else that would be used to determine the position even give a miss if being the x definition of position let me let me spend the last few minutes the claim 10 the claim that we're discussing it doesn't require that there be other things it requires the opposite it requires that wait the one thing but it doesn't require that there be a second thing and a third thing and a fourth thing but it does require that you determine the position and even if you did accept that mr. beaniex definition of position of being relative from one time to the next there's no suggestion that a anywhere in the patent or in fact in reality that a single measurement of a single multiple measurements of over time of a single bladder pressure single bladder single chamber bladder could possibly give you the position from even from one point to the next because all you know is that the pressure is changing you don't know why you don't know what how they're changing it where they're going there's many many different positions that could have come for that pressure change let me move on to claims two and six with my marine time you're on it the question here in claims two and six is priority where the inventors in possession of the concept of multiple black and multiple chambers in a bladder to determine the weight of the occupant of a seat that's what claims two and six are directed to they weren't they were not in possession of that concept at all the seven or seven patent never uses the word chambers or bladders so we're relying through at all the seven or seven patent never use those words we're relying solely upon figure five figure five is a system for adjusting the seat stiffness it has outer container five fifteen and an inner container five eighteen very different than what they call it it's it's not disputable what figure five in the earlier patent shows right have it on paper it's in black and white we can look at he's in effect arguing I think that when an artisan looks at it he sees more in it than I'm as a generalist judge might see in it and he says his witness uh.
.. so uh... corroborates that an artisan would see more in it well well do you have some witness and on your summary judgment papers he said no no no we artisans wouldn't see anything of the kind what we would see is something totally different what we would see is x and y and z we have that you're on our better we get what's your best citation to your best testimony I asked him that he's going to give it to me on the boat our best citation is the inventors themselves not no but I mean what precise evidentiary text are you relying on what the position is your strongest evidence our strongest evidence is what the inventors said they're they're heading their possession in seven or seven pan when they file the five or four from the the one that I'm talking about having their possession did the inventor have a state that figure five shows only a single blood absolutely in the five or four patent and I'll quote to you it's at the appendix one one one column twenty nine lines twenty through twenty one of the patent that that's that is the I am familiar with that but my question to you is if you have either an affidavit or any testimonial state and by the inventor it says that figure five of the seven of seven patent a figure twelve of the five will four patent contains only a single chamber certainly not your honor because by the time we get to litigation those statements aren't available the answer is really Judge Michelle's question the answer is there's no specific testimony or no specific affidavit self-studying would you rely on the fact that in the specification of the five or four patent it characterizes figure twelve which is the same as figure five of the seven of seven patent as containing a single chamber and then contrast it with twelve A showing the four squares and saying that's multiple chambers. You know that's true your honor and I have to say that it's it's part of the public record it's what a skilled artist and would look at it's the inventor's own words I don't know how else you can get to a more clear definition of what they had in their possessions then the inventors themselves saying figure twelve which is figure five of the seven of seven the airbagger bladder five fifteen which interacts with the occupant is shown with a single chamber those are the words of the inventors in their own patent how you get past that their own admissions I don't know but it is consistent with the rest of their the evidence too if you look at the progression of these patents the seven of seven patents filed with no reference to bladder no reference to chamber time time has expired mr. forbist thank you very much mr. vanny act you have a minute and a half for a rebuttal with respect to the declaration of wrong digs the expert that we submitted that says yes an artist would be able to find in the seven of seven patent exactly what we're looking for that is at pay at appendix a twenty twenty four paragraphs sixteen nineteen twenty again at page eight two zero three one we cited that our opening brief at pages thirty one and thirty five setting forth that the skilled artist and go back find two containers two chambers in the seven of seven disclosure they have to be there because there's interaction between the two chambers which are in different locations as I described with my nectarine analogy also look at that is a dispositive is it that happened David that's the only evidence it's unrebutted this is construction isn't it and are we trying to construe what yes there we are trying to that's your job I guess at this stage we're on this court has said it's a matter of law so anything that you're submitting we're talking about evidence of this and evidence of that this evidence is purely this court is set for educational purposes well I don't know to be accepted or not he didn't accept it and as a result he is a perfectly reasonable decision the question of priority is a question of law your honor which is based on factual findings so in this case this is a question of your argument right here that's right and we have a factual evidentiary record which is unrebutted in the Dix Declaration I would say that because we're dealing with the clear and convincing underlying record for claim construction is irrelevant this court is set I don't believe that's true I think that's what they said clear and convincing we need clear and convincing evidence to show that there's no priority that's the chiron case and accordingly I don't see that there was clear and convincing evidence to show that this was non enabling the only evidence is the Dix Declaration so there was clear error in deciding that there was no priority here and so far as infringement is concerned and addressing the council's argument on that and the pod system I would urge this court to look at appendix page 24 21 and I believe that categorically shows how this pod system does indeed meet the limitations of claim 10 and if not if that's not dispositive of itself we certainly have issues of material fact as I believe this court is already recognized between summary judgment should not have been granted and this should go back to the court below with respect to at least claim 10 and those issues are fair thank you we thank the next argument is in appeal number 05-711