The third and final argument this morning is in appeal number 05-1454 catalyst and chemical versus global ground. Good morning, Mr. Daniels. Welcome, please proceed. Thank you, honor. Your honor, the summary judgment of non-infringement in this case should be reversed because the judge below misconstrued the claim. Specifically, he relied upon the word as that appears toward the end of the claim to require that the de-icing and anti-icing steps occur simultaneously. Well, I thought he said they have to overlap. It's not quite the same as being simultaneous start to finish. It is not quite the same, but your honor, he also used the word simultaneously in his ruling. I thought his essential construction was that the de-icing has to still be going on at the time that the preventative steps begin to find harm and over. Correct your honor, but he also used the word simultaneously in his opinion to describe that overlap. So I'm not trying to force the worst case on the trial judge's construction
. I'm really using his own words. Why is he wrong? Okay, he's wrong because that focus on the word as contradicts the plain and ordinary meaning of that word. And when the applicants here wanted to say, wanted to convey the thought of a simultaneous continuity in their claim, they knew how to do so expressly and they did so toward the What is suggesting the correct interpretation of the word as in this claim phrase with me? Yes, I'm suggesting as we say in the brief that it is that the two acts occur at least near one another in time. And I think that that is... How does that meet the word as? Because that is the common, ordinary meaning of the word as. Yes, well let me go through several examples from ordinary speech. You could say for instance the parent picked up the toys as the child dropped them. That doesn't mean that there's overlap between the two. There could be overlap in time between the two but not necessarily. You could say
... This is a casual conversation. This is claim dressing, art form, integrated legal instrument, a formal grant of exclusive powers by an agency of the United States government. This is a little bit of a different setting than casual oral conversation. And the words in patent claims are intended to have important meanings to define the zone of technology that's protected by the patent in order to both inform the patent team where he can kick everybody else out and inform all the competitors of where they can freely tread. It's very important what these words mean. Oh, I'm not saying that it's not important, you're on. What I'm saying is the words should be construed according to their common and ordinary meaning. Common and ordinary meaning in patents like this or in conversations between parents and children. Well let me give another example, your honor. You could say for instance that as the lawyer spoke to the judges he drank a glass of water
. So you have in that instance... Do you think that would apply? I can certainly see how that would apply if in the course of your argument you drank a glass of water. However, if you sat down and during your opposing counsel's argument you had a glass of water, I wouldn't think you would use the word S. Even the colloquial sense. I agree, your honor. And that's why I say that the two acts have to be very close in time to one another. And that's what we had here with the accused system. The so-called shotgun over under apparatus used by the defendants here permitted the user to use the top de-icing spray and then stop that and immediately follow with the anti-icing spray. I'm sorry to help you. What I'm saying is I think in the circumstances you described yes as would not be appropriate but in the circumstance where one immediately follows the other where they're so close in time
. Well, wait a minute. Is there any testimony that the defendant used this rapid alternation between the one chemical and the other, the one pressure and the other in actuality? Because this is a method claim. The fact that they could do it doesn't create an infringement. You have to prove that they did do it. That is they did do this rapid alternation back and forth between the two different chemicals for the two different purposes. Well, I believe they talked about that and they're advertising your honor. No, no, no, no. You have to prove that out of the airport they did it. They either performed the method or they didn't. They could advertise all they want about what they might do or can do. That has nothing to do with what they did. The infringement is a historical fact
. They either did practice every step of the method or they didn't your burden is to prove it. How did you, where is to prove that they ever practiced the method in the manner of what I'm calling the rapid over and a. There is a videotape, your honor, that they used as advertising and that showed conversion from one mode to the other. Back and forth, back and forth rapidly. I think it was just one to the other. I don't think so. I think too, which is quite different. And only, you're, are you even only worked if they're going back and forth, back and forth, back and forth? No, you're honor. That's not true. Because the claim recites application of deicing fluid and then application of anti-icing fluid. So there's no back and forth. They aren't, they aren't simultaneous
. Okay, well let me proceed then to the prosecution history because that was another basis. Well, before you get to the prosecution history, there is a portion of the specification that seems to me is problematic for you. I'm sure you can know that it's called seven and between 50 and 60 where you mentioned the judge having picked up the word simultaneously with the specification uses that precise word. Yes. Simultaneously, capable of deicing and anti-icing. So just the term as is being used in the sense of the term file. Your honor, is that? There's further, the other reference, of course, is concurrently as the other and other but used, which again suggests contemporary naity, direct contemporary naity, at least overlapped. Well, the, first of all, the passage that you refer to is one raised for the first time here on appeal. But, but, well, the, I understand the specific case. I understand. I understand. I understand
. I understand. I understand. If you notice, this passage is saying simultaneously, capable of deicing and anti-icing and or cleaning and rinsing both the underside and the top side. When the patent uses the expression simultaneously, it does so in the context of talking about the upper side and the lower side. So, you know, I might, I might give some things that argument if I didn't read the next sentence, which says refers to the invention, the present invention concurrently delivers respective fluid pressure mixtures for deiting and anti-ice, which seems to be directly on the question of contemporary naity. I understand, you know. The word though concurrently in the dictionary does mean either contemporaneously or side by side. Well, these two operations are done side by side, not overlapping temple in time. As opposed to consecutive. Correctly, you're on it. And we also have- If you are, I mean, the accused device would be fairly characterized as engaging in consecutive I-sit and deiting and anti-icing, then it's not concurrent, right? I think it would be concurrent according to the dictionary. Well, I thought we just- Well, concurrent is concurrent and consecutive and different
. They're enemies, though. They're not anonyms. They're different in their different words and they have different meaning, but they have overlapping meaning, too. They cover the same type of close activity. Now, on the question of temporality here, what is- Well, how are you grounding your argument in the requirement of the case law that the perspective in construing these words and phrases and explanatory sentences in the written description is the perspective of the skilled artisan in designing these kinds of systems. Well, talk about what a parent might say to a child or to talk about what a general purpose dictionary says. I think it's almost nothing to do with the right mode of analysis of technical language in a patent claim. You're honest, I would agree with you if we were talking about a technical term, but the word has is- Well, in a prior patent is technical. But it is composed of words that have common and ordinary meaning that don't have, and there's been no allegation in this case that the word has has a special meaning in this technology- That's not my point. My point is that construing the word as has to be done in light of what the entire patent document says, as read by an ordinary artisan, not by my mother-in-law. I agree with that, Your Honor. But there's no reason to think
. There's nothing in the record to think that the word as even in this context has a different meaning from the skilled artisan than it would from a ordinary person. Well, that's your view. Well, let me address the point of temporality. What does it mean to be the same time? In this particular case, the skilled artisan would look at this specification. In fact, as the examiner did and say, the temporality is a single pass. It's true that the word simultaneously does occur in column seven, but the notion of a single pass, the airplane moving past the apparatus just once to both deice and anti-ice, is pervasive in this patent. It comes up in the very first sentence in the abstract, and before the examiner would allow the case, he required it to be put into the claim. And I would very much like your honor to talk about the prosecution history, because I think that is the reason that the trial judge here went off base. In his decision at A35 of the appendix, he says, therefore, in order to avoid the prior art process patented by Thornton Trump, the patent officer and the patentee agreed to add language to show that for a portion of the process steps two and three occurs simultaneously. This is not true at all, your honor. In fact, the arguments made by the applicants appear at A240. There, they said that their invention is distinguishable from Thornton Trump, because the reference failed to disclose the presence of glycol in the anti-icing step, that it used only water in the anti-icing step
. And further, that Thornton Trump failed to disclose the step of collecting both the deicing and the anti-icing substances in the one pass. Now, this proceeds, your honor. If you go through the various interview summaries, there's never a mention of simultaneous tenacity or overlap in time, no fixation on the word as. And for instance, in the summary of the July 30th, 1991 interview, the examiner stated, further claim language added to show that the aircraft will be deiced and anti-iced in the two-step, single pass operation. So again, the simultaneous that's being talked about here is that we are going to both deice and anti-ice in the course of a single relative pass. And I think it's very important to look at the notice of allowance where the examiner made the a memo that's relied upon by the trial court to find this temporal overlap. And the judge, as I say, relied on this and the examiner added the language that appears toward the very end of the claim. He says, where in the apparatus, I'm sorry, where in the aircraft is progressively deiced and anti-iced in one pass of the aircraft relative to the apparatus. It has nothing to do with the word as. I notice here, really, for the first time at this moment, that the word simultaneously does appear just above and something the examiner has added to the claim. But that is simultaneously as used to indicate that the forced air and the glycoil mixture exit the nozzle at the same time. So perhaps that is where the examiner went wrong on this argument. You want to save any of your minutes? I do, Your Honor. Thank you for reminding me. I will take that. Thank you, Mr. Daniels. Mr. Gordon. Thank you. Thank you. I have pleased the court. The issue here is really very straightforward. The patent claim, claim 25 was, of course, drafted by the appellant
. You want to save any of your minutes? I do, Your Honor. Thank you for reminding me. I will take that. Thank you, Mr. Daniels. Mr. Gordon. Thank you. Thank you. I have pleased the court. The issue here is really very straightforward. The patent claim, claim 25 was, of course, drafted by the appellant. He chose what language to use there. And he chose to use and defining his invention, the language that the anti-icing would be accomplished as the de-icing continues to be accomplished. Now if that was the only mention in the patent, we think it would be clear enough just based on common language, notwithstanding what Mr. Daniels has suggested. But if there's any question, you look to the rest of the patent to see what construction is being given. And the place that you would look first is, as Judge Bryson has pointed out, to the summary of the invention that has provided, in the subpoor of the page 84 of the joint appendix in columns up, where it is said that it is an object of the invention to provide an apparatus and method that is simultaneously capable of de-icing and anti-hats. And then in the very next paragraph, it says the apparatus and method of the present invention can currently deliver respective fluid pressure measures for de-icing and anti-icing. Is it your contention that to violate the, to entrench this patent, one would have to have two separate nozzle means, one spring de-icing and pressurized air and the other spring that anti-icing chemical and pressurized air. Yes, Your Honor. I believe that that's clear of it throughout the patent. Yes, and the accused device only has a single nozzle means, a single emission of the combination of air and a chemical, one chemical. That's correct, Your Honor
. He chose what language to use there. And he chose to use and defining his invention, the language that the anti-icing would be accomplished as the de-icing continues to be accomplished. Now if that was the only mention in the patent, we think it would be clear enough just based on common language, notwithstanding what Mr. Daniels has suggested. But if there's any question, you look to the rest of the patent to see what construction is being given. And the place that you would look first is, as Judge Bryson has pointed out, to the summary of the invention that has provided, in the subpoor of the page 84 of the joint appendix in columns up, where it is said that it is an object of the invention to provide an apparatus and method that is simultaneously capable of de-icing and anti-hats. And then in the very next paragraph, it says the apparatus and method of the present invention can currently deliver respective fluid pressure measures for de-icing and anti-icing. Is it your contention that to violate the, to entrench this patent, one would have to have two separate nozzle means, one spring de-icing and pressurized air and the other spring that anti-icing chemical and pressurized air. Yes, Your Honor. I believe that that's clear of it throughout the patent. Yes, and the accused device only has a single nozzle means, a single emission of the combination of air and a chemical, one chemical. That's correct, Your Honor. If I may, just to follow up in terms of the interpretation, the other thing that you would look to, we submit in which the district court did look to, are the illustrations that are provided. And the district court set those out. If you take a look at page 34 of the appendix, the district court reproduced their figures 4B through 4E of the patent. You want to see bigger pictures of the same thing. You could also look alternatively at pages 57 through. Well, the only problem with that is typically the figures are expressly indicated to be a depiction of the preferred of bodies. And we have, I believe, a significant number of cases that say that it's rare that a broadest claim of patent is only one claim of issue, of course, is limited to precisely what is shown in the preferred and body of the figures and nothing more. That would be a very unusual pass. Well, Your Honor, if we were relying on the drawings here for our interpretation, then I would agree with you. I think we're down to a third level of support for the language that's been used in print. And I'm not trying to make the figure bear more than it's worth. But if I may, I think that the case is clearly already over in the sense that Judge Kennedy was very careful and correctly construed this
. If I may, just to follow up in terms of the interpretation, the other thing that you would look to, we submit in which the district court did look to, are the illustrations that are provided. And the district court set those out. If you take a look at page 34 of the appendix, the district court reproduced their figures 4B through 4E of the patent. You want to see bigger pictures of the same thing. You could also look alternatively at pages 57 through. Well, the only problem with that is typically the figures are expressly indicated to be a depiction of the preferred of bodies. And we have, I believe, a significant number of cases that say that it's rare that a broadest claim of patent is only one claim of issue, of course, is limited to precisely what is shown in the preferred and body of the figures and nothing more. That would be a very unusual pass. Well, Your Honor, if we were relying on the drawings here for our interpretation, then I would agree with you. I think we're down to a third level of support for the language that's been used in print. And I'm not trying to make the figure bear more than it's worth. But if I may, I think that the case is clearly already over in the sense that Judge Kennedy was very careful and correctly construed this. But the words too further are elements that we made that Judge Kennedy didn't even reach. And one of them is utterly fundamental to the way the respective inventions here work. And that is that the patent that Mr. Gone had talks about the stationary apparatus through which the aircraft moves. And I'm the quoted language is in claim 25. And we pulled this in the footnote of page 14 of our brief. So the whole point of his invention is that the plane is pulled through his stationary apparatus. And in this one pass that you've heard so much about, it is first deiced in second and last. The invention that global uses is precisely the contrary. The plane is parked in stationary through rock. And you have this cab with a single nozzle at the end of what is effectively a giant mechanical arm that can go up and down inside the side and turret around. And that moves up and down the length of the plane to accomplish the deicin
. But the words too further are elements that we made that Judge Kennedy didn't even reach. And one of them is utterly fundamental to the way the respective inventions here work. And that is that the patent that Mr. Gone had talks about the stationary apparatus through which the aircraft moves. And I'm the quoted language is in claim 25. And we pulled this in the footnote of page 14 of our brief. So the whole point of his invention is that the plane is pulled through his stationary apparatus. And in this one pass that you've heard so much about, it is first deiced in second and last. The invention that global uses is precisely the contrary. The plane is parked in stationary through rock. And you have this cab with a single nozzle at the end of what is effectively a giant mechanical arm that can go up and down inside the side and turret around. And that moves up and down the length of the plane to accomplish the deicin. It's as different as black and white. So the patent infringement claim here is not any close. And I think that it's no coincidence that it took two years after this case was filed before the patent infringement claim was added. The case was originally filed in February of 2002. And plaintiff didn't get around to adding the patent infringement claim until January of 2004. This claim was originally a trade seeded claim which of course the jury rejected. Preach a contract claim. Preach a jury rejected in a repo claim that the court threw out early in the process. What was the credit for the repo? Now fraud, why fraud? Yeah, the contractual procedure. The contractual breach is converted into the patent access now. All right, thank you. Thank you, Aaron
. It's as different as black and white. So the patent infringement claim here is not any close. And I think that it's no coincidence that it took two years after this case was filed before the patent infringement claim was added. The case was originally filed in February of 2002. And plaintiff didn't get around to adding the patent infringement claim until January of 2004. This claim was originally a trade seeded claim which of course the jury rejected. Preach a contract claim. Preach a jury rejected in a repo claim that the court threw out early in the process. What was the credit for the repo? Now fraud, why fraud? Yeah, the contractual procedure. The contractual breach is converted into the patent access now. All right, thank you. Thank you, Aaron. On a point raised earlier, one skilled in the art would interpret the word as to mean. We certainly had people skilled in the art in this case. We had very sophisticated engineers on both sides and yet neither party. Although this case was heavily fought at the summary judgment stage, neither party identified the word as as indicating temporal simultaneous and I'm not saying you're honored that the defendant is precluded from lying on this argument created by the judge or the judges precluded from making this argument. But I am saying is that certainly people skilled in the art looked very carefully at this patent for some long time and never heard anyone. I shouldn't pick on you but I find it astounding for many attorneys to stand at the podium and talk about the quote argument made by the trial judge. But trial judges don't make arguments, advocates make arguments, trial judges and affiliates make decisions based on rational. They don't make arguments. The arguments are over when they decide it. Okay, absolutely with language, but lawyer really should be more careful. My point is that people skilled in the art looked at the word as and it never occurred to them that there was a requirement in a claim for temporal overlap. The court asked Pelleese counsel about the number of nozzles
. On a point raised earlier, one skilled in the art would interpret the word as to mean. We certainly had people skilled in the art in this case. We had very sophisticated engineers on both sides and yet neither party. Although this case was heavily fought at the summary judgment stage, neither party identified the word as as indicating temporal simultaneous and I'm not saying you're honored that the defendant is precluded from lying on this argument created by the judge or the judges precluded from making this argument. But I am saying is that certainly people skilled in the art looked very carefully at this patent for some long time and never heard anyone. I shouldn't pick on you but I find it astounding for many attorneys to stand at the podium and talk about the quote argument made by the trial judge. But trial judges don't make arguments, advocates make arguments, trial judges and affiliates make decisions based on rational. They don't make arguments. The arguments are over when they decide it. Okay, absolutely with language, but lawyer really should be more careful. My point is that people skilled in the art looked at the word as and it never occurred to them that there was a requirement in a claim for temporal overlap. The court asked Pelleese counsel about the number of nozzles. Would it require at least two nozzles then to infringe this claim? Two nozzles means I think was the court's precise wording and counsel said yes. Well, there's only one nozzle means recited in the claim. And so according to I just can't understand the Pelleese argument if that is part of the basis for it when it expressly contradicts the claim. And as to column seven, let me just point out that it is a stated object of the invention. One of quite a few stated objects of the invention. It doesn't say the invention is the simultaneous application of deicing the anti-icing treatment. It says this is one of the objects of the invention. And I think the case law of this court is that that an object of the invention among many objects should be incorporated into the claim as limitation. Are you saying that the patent specifies that the invention is recited? It only has one nozzle? It has one the claim itself recites a nozzle means. No, no, it has an apparatus including respective nozzles means. That suggests to me exactly the opposite is that it has two nozzles means. One first brand each of the two different types of chemicals
. Would it require at least two nozzles then to infringe this claim? Two nozzles means I think was the court's precise wording and counsel said yes. Well, there's only one nozzle means recited in the claim. And so according to I just can't understand the Pelleese argument if that is part of the basis for it when it expressly contradicts the claim. And as to column seven, let me just point out that it is a stated object of the invention. One of quite a few stated objects of the invention. It doesn't say the invention is the simultaneous application of deicing the anti-icing treatment. It says this is one of the objects of the invention. And I think the case law of this court is that that an object of the invention among many objects should be incorporated into the claim as limitation. Are you saying that the patent specifies that the invention is recited? It only has one nozzle? It has one the claim itself recites a nozzle means. No, no, it has an apparatus including respective nozzles means. That suggests to me exactly the opposite is that it has two nozzles means. One first brand each of the two different types of chemicals. Yes, Your Honor, I stay corrected. I apologize. You're correct. But that in the accused product we had two nozzles means. You had two nozzles but they constitute a single nozzle means because one blows air and the other blows liquid chemical. And that's just the way it is in our claim. One blows forced air and the second one blows fluid mixture. That's the second part of the first one. Your Honor, one in the accused apparatus. One nozzle blows forced air. One nozzle blows the anti-icing fluid. And that's what we have in our claim
. Yes, Your Honor, I stay corrected. I apologize. You're correct. But that in the accused product we had two nozzles means. You had two nozzles but they constitute a single nozzle means because one blows air and the other blows liquid chemical. And that's just the way it is in our claim. One blows forced air and the second one blows fluid mixture. That's the second part of the first one. Your Honor, one in the accused apparatus. One nozzle blows forced air. One nozzle blows the anti-icing fluid. And that's what we have in our claim. All right, I think we have the argument clearly in mind. Thank you, Councillor. Thank you for the case under advised. Thank you, Your Honor.
The third and final argument this morning is in appeal number 05-1454 catalyst and chemical versus global ground. Good morning, Mr. Daniels. Welcome, please proceed. Thank you, honor. Your honor, the summary judgment of non-infringement in this case should be reversed because the judge below misconstrued the claim. Specifically, he relied upon the word as that appears toward the end of the claim to require that the de-icing and anti-icing steps occur simultaneously. Well, I thought he said they have to overlap. It's not quite the same as being simultaneous start to finish. It is not quite the same, but your honor, he also used the word simultaneously in his ruling. I thought his essential construction was that the de-icing has to still be going on at the time that the preventative steps begin to find harm and over. Correct your honor, but he also used the word simultaneously in his opinion to describe that overlap. So I'm not trying to force the worst case on the trial judge's construction. I'm really using his own words. Why is he wrong? Okay, he's wrong because that focus on the word as contradicts the plain and ordinary meaning of that word. And when the applicants here wanted to say, wanted to convey the thought of a simultaneous continuity in their claim, they knew how to do so expressly and they did so toward the What is suggesting the correct interpretation of the word as in this claim phrase with me? Yes, I'm suggesting as we say in the brief that it is that the two acts occur at least near one another in time. And I think that that is... How does that meet the word as? Because that is the common, ordinary meaning of the word as. Yes, well let me go through several examples from ordinary speech. You could say for instance the parent picked up the toys as the child dropped them. That doesn't mean that there's overlap between the two. There could be overlap in time between the two but not necessarily. You could say... This is a casual conversation. This is claim dressing, art form, integrated legal instrument, a formal grant of exclusive powers by an agency of the United States government. This is a little bit of a different setting than casual oral conversation. And the words in patent claims are intended to have important meanings to define the zone of technology that's protected by the patent in order to both inform the patent team where he can kick everybody else out and inform all the competitors of where they can freely tread. It's very important what these words mean. Oh, I'm not saying that it's not important, you're on. What I'm saying is the words should be construed according to their common and ordinary meaning. Common and ordinary meaning in patents like this or in conversations between parents and children. Well let me give another example, your honor. You could say for instance that as the lawyer spoke to the judges he drank a glass of water. So you have in that instance... Do you think that would apply? I can certainly see how that would apply if in the course of your argument you drank a glass of water. However, if you sat down and during your opposing counsel's argument you had a glass of water, I wouldn't think you would use the word S. Even the colloquial sense. I agree, your honor. And that's why I say that the two acts have to be very close in time to one another. And that's what we had here with the accused system. The so-called shotgun over under apparatus used by the defendants here permitted the user to use the top de-icing spray and then stop that and immediately follow with the anti-icing spray. I'm sorry to help you. What I'm saying is I think in the circumstances you described yes as would not be appropriate but in the circumstance where one immediately follows the other where they're so close in time. Well, wait a minute. Is there any testimony that the defendant used this rapid alternation between the one chemical and the other, the one pressure and the other in actuality? Because this is a method claim. The fact that they could do it doesn't create an infringement. You have to prove that they did do it. That is they did do this rapid alternation back and forth between the two different chemicals for the two different purposes. Well, I believe they talked about that and they're advertising your honor. No, no, no, no. You have to prove that out of the airport they did it. They either performed the method or they didn't. They could advertise all they want about what they might do or can do. That has nothing to do with what they did. The infringement is a historical fact. They either did practice every step of the method or they didn't your burden is to prove it. How did you, where is to prove that they ever practiced the method in the manner of what I'm calling the rapid over and a. There is a videotape, your honor, that they used as advertising and that showed conversion from one mode to the other. Back and forth, back and forth rapidly. I think it was just one to the other. I don't think so. I think too, which is quite different. And only, you're, are you even only worked if they're going back and forth, back and forth, back and forth? No, you're honor. That's not true. Because the claim recites application of deicing fluid and then application of anti-icing fluid. So there's no back and forth. They aren't, they aren't simultaneous. Okay, well let me proceed then to the prosecution history because that was another basis. Well, before you get to the prosecution history, there is a portion of the specification that seems to me is problematic for you. I'm sure you can know that it's called seven and between 50 and 60 where you mentioned the judge having picked up the word simultaneously with the specification uses that precise word. Yes. Simultaneously, capable of deicing and anti-icing. So just the term as is being used in the sense of the term file. Your honor, is that? There's further, the other reference, of course, is concurrently as the other and other but used, which again suggests contemporary naity, direct contemporary naity, at least overlapped. Well, the, first of all, the passage that you refer to is one raised for the first time here on appeal. But, but, well, the, I understand the specific case. I understand. I understand. I understand. I understand. I understand. If you notice, this passage is saying simultaneously, capable of deicing and anti-icing and or cleaning and rinsing both the underside and the top side. When the patent uses the expression simultaneously, it does so in the context of talking about the upper side and the lower side. So, you know, I might, I might give some things that argument if I didn't read the next sentence, which says refers to the invention, the present invention concurrently delivers respective fluid pressure mixtures for deiting and anti-ice, which seems to be directly on the question of contemporary naity. I understand, you know. The word though concurrently in the dictionary does mean either contemporaneously or side by side. Well, these two operations are done side by side, not overlapping temple in time. As opposed to consecutive. Correctly, you're on it. And we also have- If you are, I mean, the accused device would be fairly characterized as engaging in consecutive I-sit and deiting and anti-icing, then it's not concurrent, right? I think it would be concurrent according to the dictionary. Well, I thought we just- Well, concurrent is concurrent and consecutive and different. They're enemies, though. They're not anonyms. They're different in their different words and they have different meaning, but they have overlapping meaning, too. They cover the same type of close activity. Now, on the question of temporality here, what is- Well, how are you grounding your argument in the requirement of the case law that the perspective in construing these words and phrases and explanatory sentences in the written description is the perspective of the skilled artisan in designing these kinds of systems. Well, talk about what a parent might say to a child or to talk about what a general purpose dictionary says. I think it's almost nothing to do with the right mode of analysis of technical language in a patent claim. You're honest, I would agree with you if we were talking about a technical term, but the word has is- Well, in a prior patent is technical. But it is composed of words that have common and ordinary meaning that don't have, and there's been no allegation in this case that the word has has a special meaning in this technology- That's not my point. My point is that construing the word as has to be done in light of what the entire patent document says, as read by an ordinary artisan, not by my mother-in-law. I agree with that, Your Honor. But there's no reason to think. There's nothing in the record to think that the word as even in this context has a different meaning from the skilled artisan than it would from a ordinary person. Well, that's your view. Well, let me address the point of temporality. What does it mean to be the same time? In this particular case, the skilled artisan would look at this specification. In fact, as the examiner did and say, the temporality is a single pass. It's true that the word simultaneously does occur in column seven, but the notion of a single pass, the airplane moving past the apparatus just once to both deice and anti-ice, is pervasive in this patent. It comes up in the very first sentence in the abstract, and before the examiner would allow the case, he required it to be put into the claim. And I would very much like your honor to talk about the prosecution history, because I think that is the reason that the trial judge here went off base. In his decision at A35 of the appendix, he says, therefore, in order to avoid the prior art process patented by Thornton Trump, the patent officer and the patentee agreed to add language to show that for a portion of the process steps two and three occurs simultaneously. This is not true at all, your honor. In fact, the arguments made by the applicants appear at A240. There, they said that their invention is distinguishable from Thornton Trump, because the reference failed to disclose the presence of glycol in the anti-icing step, that it used only water in the anti-icing step. And further, that Thornton Trump failed to disclose the step of collecting both the deicing and the anti-icing substances in the one pass. Now, this proceeds, your honor. If you go through the various interview summaries, there's never a mention of simultaneous tenacity or overlap in time, no fixation on the word as. And for instance, in the summary of the July 30th, 1991 interview, the examiner stated, further claim language added to show that the aircraft will be deiced and anti-iced in the two-step, single pass operation. So again, the simultaneous that's being talked about here is that we are going to both deice and anti-ice in the course of a single relative pass. And I think it's very important to look at the notice of allowance where the examiner made the a memo that's relied upon by the trial court to find this temporal overlap. And the judge, as I say, relied on this and the examiner added the language that appears toward the very end of the claim. He says, where in the apparatus, I'm sorry, where in the aircraft is progressively deiced and anti-iced in one pass of the aircraft relative to the apparatus. It has nothing to do with the word as. I notice here, really, for the first time at this moment, that the word simultaneously does appear just above and something the examiner has added to the claim. But that is simultaneously as used to indicate that the forced air and the glycoil mixture exit the nozzle at the same time. So perhaps that is where the examiner went wrong on this argument. You want to save any of your minutes? I do, Your Honor. Thank you for reminding me. I will take that. Thank you, Mr. Daniels. Mr. Gordon. Thank you. Thank you. I have pleased the court. The issue here is really very straightforward. The patent claim, claim 25 was, of course, drafted by the appellant. He chose what language to use there. And he chose to use and defining his invention, the language that the anti-icing would be accomplished as the de-icing continues to be accomplished. Now if that was the only mention in the patent, we think it would be clear enough just based on common language, notwithstanding what Mr. Daniels has suggested. But if there's any question, you look to the rest of the patent to see what construction is being given. And the place that you would look first is, as Judge Bryson has pointed out, to the summary of the invention that has provided, in the subpoor of the page 84 of the joint appendix in columns up, where it is said that it is an object of the invention to provide an apparatus and method that is simultaneously capable of de-icing and anti-hats. And then in the very next paragraph, it says the apparatus and method of the present invention can currently deliver respective fluid pressure measures for de-icing and anti-icing. Is it your contention that to violate the, to entrench this patent, one would have to have two separate nozzle means, one spring de-icing and pressurized air and the other spring that anti-icing chemical and pressurized air. Yes, Your Honor. I believe that that's clear of it throughout the patent. Yes, and the accused device only has a single nozzle means, a single emission of the combination of air and a chemical, one chemical. That's correct, Your Honor. If I may, just to follow up in terms of the interpretation, the other thing that you would look to, we submit in which the district court did look to, are the illustrations that are provided. And the district court set those out. If you take a look at page 34 of the appendix, the district court reproduced their figures 4B through 4E of the patent. You want to see bigger pictures of the same thing. You could also look alternatively at pages 57 through. Well, the only problem with that is typically the figures are expressly indicated to be a depiction of the preferred of bodies. And we have, I believe, a significant number of cases that say that it's rare that a broadest claim of patent is only one claim of issue, of course, is limited to precisely what is shown in the preferred and body of the figures and nothing more. That would be a very unusual pass. Well, Your Honor, if we were relying on the drawings here for our interpretation, then I would agree with you. I think we're down to a third level of support for the language that's been used in print. And I'm not trying to make the figure bear more than it's worth. But if I may, I think that the case is clearly already over in the sense that Judge Kennedy was very careful and correctly construed this. But the words too further are elements that we made that Judge Kennedy didn't even reach. And one of them is utterly fundamental to the way the respective inventions here work. And that is that the patent that Mr. Gone had talks about the stationary apparatus through which the aircraft moves. And I'm the quoted language is in claim 25. And we pulled this in the footnote of page 14 of our brief. So the whole point of his invention is that the plane is pulled through his stationary apparatus. And in this one pass that you've heard so much about, it is first deiced in second and last. The invention that global uses is precisely the contrary. The plane is parked in stationary through rock. And you have this cab with a single nozzle at the end of what is effectively a giant mechanical arm that can go up and down inside the side and turret around. And that moves up and down the length of the plane to accomplish the deicin. It's as different as black and white. So the patent infringement claim here is not any close. And I think that it's no coincidence that it took two years after this case was filed before the patent infringement claim was added. The case was originally filed in February of 2002. And plaintiff didn't get around to adding the patent infringement claim until January of 2004. This claim was originally a trade seeded claim which of course the jury rejected. Preach a contract claim. Preach a jury rejected in a repo claim that the court threw out early in the process. What was the credit for the repo? Now fraud, why fraud? Yeah, the contractual procedure. The contractual breach is converted into the patent access now. All right, thank you. Thank you, Aaron. On a point raised earlier, one skilled in the art would interpret the word as to mean. We certainly had people skilled in the art in this case. We had very sophisticated engineers on both sides and yet neither party. Although this case was heavily fought at the summary judgment stage, neither party identified the word as as indicating temporal simultaneous and I'm not saying you're honored that the defendant is precluded from lying on this argument created by the judge or the judges precluded from making this argument. But I am saying is that certainly people skilled in the art looked very carefully at this patent for some long time and never heard anyone. I shouldn't pick on you but I find it astounding for many attorneys to stand at the podium and talk about the quote argument made by the trial judge. But trial judges don't make arguments, advocates make arguments, trial judges and affiliates make decisions based on rational. They don't make arguments. The arguments are over when they decide it. Okay, absolutely with language, but lawyer really should be more careful. My point is that people skilled in the art looked at the word as and it never occurred to them that there was a requirement in a claim for temporal overlap. The court asked Pelleese counsel about the number of nozzles. Would it require at least two nozzles then to infringe this claim? Two nozzles means I think was the court's precise wording and counsel said yes. Well, there's only one nozzle means recited in the claim. And so according to I just can't understand the Pelleese argument if that is part of the basis for it when it expressly contradicts the claim. And as to column seven, let me just point out that it is a stated object of the invention. One of quite a few stated objects of the invention. It doesn't say the invention is the simultaneous application of deicing the anti-icing treatment. It says this is one of the objects of the invention. And I think the case law of this court is that that an object of the invention among many objects should be incorporated into the claim as limitation. Are you saying that the patent specifies that the invention is recited? It only has one nozzle? It has one the claim itself recites a nozzle means. No, no, it has an apparatus including respective nozzles means. That suggests to me exactly the opposite is that it has two nozzles means. One first brand each of the two different types of chemicals. Yes, Your Honor, I stay corrected. I apologize. You're correct. But that in the accused product we had two nozzles means. You had two nozzles but they constitute a single nozzle means because one blows air and the other blows liquid chemical. And that's just the way it is in our claim. One blows forced air and the second one blows fluid mixture. That's the second part of the first one. Your Honor, one in the accused apparatus. One nozzle blows forced air. One nozzle blows the anti-icing fluid. And that's what we have in our claim. All right, I think we have the argument clearly in mind. Thank you, Councillor. Thank you for the case under advised. Thank you, Your Honor