Charlie Mr. Erickson. Yes, ma'am, please the court. As the court knows, there's three processes of E.E.I. that are in issue in this appeal. I'd like to start with the original process, which the district court determined had infringed claim one of the 937 patent. That determination is erroneous for at least three reasons or for three reasons. The issues with respect to the 937 patent are deal with the suspending material that's used in the drag-reducing agent. Claim one uses the restrictive language selected from the group consisting of water and water alcohol mixtures to define the suspending material. Notably, this is not in our brief, the invention section of the specification of the patent uses that same restrictive language. That's well established that that restrictive language consisting of in a patent claim means I claim what follows and nothing else. That's one of the express holdings in the vehicular technology case cited in our brief. And that holding is in accord with the prior precedence of this court and its predecessor courts. Notably, two cases not cited in our brief where the Abbott-Labs case reported a 334 F31274 pinpoint 1281. And the management case reported at 793 F21279 pinpoint 1282
. Have you called those cases to the attention of your opposing counsel other than right now? No, sorry. Okay, I think in the future there's a courtesy to opposing counsel to give them a chance to respond. There's also another case recently decided by this court, the Norean case December 5th, 19, are being 2005 is the best. Norean against strikers at the case you're talking about? Yes, you're right. So when claim one calls for a suspending material selected from the group consisting of water and water alcohol mixtures as a matter of law that means the suspending material must contain water and nothing else or water and alcohol and nothing else. It is undisputed that the alpha-al-2 that was used in E.E.I.'s original process contained substantive amounts of other chemicals besides water and alcohol. And as a matter of law for that reason E.E.I.'s the suspending material used in E.E.I.'s original process did not satisfy claim one of the 937 pound
. And when you say other substances you're really talking about the mibK, right? Well, there's the miBK, there's the ammonia, there's the heptane, and other set out in the chart. I believe it's on page 8 of the blue brief. But what evidence is there in a record to show that the miDK did assist in the suspension? Why was the miDK used? The miBK is in, pardon me, denatured alcohol you're on. So it's not drinkable? Yes, so the ethanol is not drinkable. Yes, sir, that's correct. And that's what E.E.I. bought to use as a suspending material in its original process. It didn't have water and alcohol, but the miBK, I'm sorry, go ahead. But did the miBK actually act as a suspension? He coughed and I didn't hear you, I'm sorry. Did the miBK act as a suspension? I don't think so, Your Honor, there's no evidence of that that I know of. So it was not a suspension element. It was only used for the specific purpose of making it non-drinkable. I'm sure it would affect the suspension somehow, but you're honest. There's no evidence in the record to do
. I don't know of any, that's correct. Your expert on his deposition called all those extrachemicals impurities. And there's some argument that impurities could be associated with the consisting of ingredients and still satisfy the claim. Well, I thank Your Honor, in that regard, the impurities, if we're going to include the possibility of impurities in the consisting of language, have to be impurities, ordinarily associated with the claimed elements, i.e. impurities of water and water alcohol mixture. And there's no evidence at all that these other chemicals that are in the denatured alcohol are impurities of a water alcohol mixture. Well, there was some argument, at least, that miBK was always in the denatured alcohol. Yes, but I think I've used for industrial purposes. There was that argument, but I think the focus has to be in the first instance, when we're construing the claim on the claimed compounds, water alcohol, and what are the impurities or narrowly associated with water in alcohol mixtures. I wonder if one way of looking at this issue is to say that the term alcohol in a purely chemical sense, at least with respect to ethanol, is a particular substance. But when you use it in the context of a reference to the commercial use of alcohol that it naturally includes ordinarily miBK, and therefore water alcohol in this context includes a component that denatures the alcohol. If I go to the drugstore, for example, to buy a bottle of alcohol, I'm not going to get 100% or even really very close to 100% alcohol. It will be alcohol, but it'll not be 91% typically. But I would call it alcohol. If I mixed it with water, I would call that an alcohol water mixture because the 9% that's left over is basically just goes with the product alcohol
. Isn't that a reasonable way to look at the use of the term alcohol in the context of this pattern? I'm sorry, Judge. I wasn't clear, perhaps. Well, what I'm saying is, can you view the term alcohol as used with reference to an industrial substance as already incorporating the miBK component that needs to be included in order for that alcohol to be used in an industrial setting? I guess you can, but I think we still need to focus on the claim language first and on the claim compound. And if we're going to include impurities, they have to be impurities ordinarily associated with a water alcohol mixture, which the miBK, there's no evidence that miBK is ordinarily associated with an alcohol mixture. The second point I'd like to make is what is the amount? What is the district court's interpretation of the amount of water that needs to be in a water alcohol mixture? The district court interpreted this amount as being satisfied by more than a more than negligible amount of water. And the district court also indicated that the suspending material must be made with some non-consequential amount of water. The words negligible and non-inconssequential are nowhere to be found in the 937 pattern, but what the 937 pattern in disputability teaches is that a water alcohol mixture usually has a minimum of about 30 percent water and more usually 50 to 70 percent water by weight. The two examples in the pattern have water content of 50 percent weight. If we look at the entirety of the specification, we don't find anywhere where there's a description of a water alcohol mixture that could range between 2 percent water and 100 percent water, which would occur under the district courts into a partition. And Conaco, I submit, is just not entitled to a construction of the amount of water in a water alcohol mixture, which is divorced from the specification, and that's exactly what occurred in this case. There are two very recent cases decided by this court, the aquatex case and the niestrum case, both of which support the proposition that the minimum amount of water in a water alcohol mixture as that term is used in the 937 pattern should be 30 percent. And the alpha-2 used in the original process did not have anywhere near that amount of water. Stable is the other term with respect to the 937 pattern, the specification defined stable as that the suspensions obtained by the described procedures are homogeneous dispersions, stable, non-evalomerating, and maybe shipped over long distances while retaining the properties. There's absolutely no evidence in the record that I've found anyway that shows that EEI's original product made by the original process, satisfied that definition. If I would, I have a visual aid work going to turn now, and my time is flaking to the, and I have this is the equivalent issue on the 151. Yes, yes, your honor it is
. We're going to turn to the 151 pattern having to do with the doctrine of equivalents. Excuse me, Council. One question. Yes. With respect to the C30 plus wax, how is that the chemically different from the fatty acid wax? Is there a difference? It is, and your honor, I am not a chemist, and I cannot articulate it. When you get down here to the ceramides though, what the thing which is down from the fatty acid wax is the fact that they have a nitrogen, it's in H2 attached to the molecule, nitrogen and two hydrogens, and that's the amen part of it as I understand it. That distinguishes them from EEI wax or C30. Which have pure hydrocarbon. Yes, your hydrocarbon wax. Yes, your honor. And for the district court, about claim 21 issue, this claim won in the 151 pattern, and it started out claiming any partition major, which is represented by the big box. There was an amendment to claim 21, which narrowed claim 21, the fatty acid wax, then there was an argument in the framework office that narrow fatty acid waxes to ceramides and other amen derivatives, this green part and the chart here, the district court. Flatly vacuated the claim limitation when it found that C30 plus wax satisfied the fatty acid wax limitation under the doctrine of the court. Let's set aside for a moment the amendment aspect of your argument and assume as the Apple E's argue that that was just effectively a correction of a ministerial error and was not intended to be a contraction of the scope of the claim for purposes of patentability. And just look at the argument aspect in which the argument was made that ceramides were disclaimed as a subset that what otherwise would have been a subset of fatty acid waxes. Why would that disclaimer also constitute an implied disclaimer of the pure hydrocarbon waxes? Well, I think if I understand your question, yes
. That would be the situation where argument reduced the scope. Correct. But starting with the bottom half of your chart, right, and you reduced the scope from of the bottom half by removing some elements. But why does that affect the question of whether equivalents are still available to other substances? That affects the answer to your question as this year on. Based on Festo, they kind of go half-prisoned, to have surrendered this area between the original claim limitation which were assuming contained fatty acid wax and the narrow claim limitation which is by argument, ceramides, and similar aiming derivatives. Festo says they're presumed to give up this area. Festo further said, and I think by aggro, the case cited in my reply, I read further in the case that this is the area that they're presumed to have given up. They can show if they can overcome the presumption of Festo, they may be able to snare something in that area. But nothing is going to let them go out of that area in the first place, go broader than the original claim limitation which were assuming for purposes of this question was fatty acid wax. They've gone broader than the original claim limitation. You're using Festo in the context of an argument as opposed to an amendment. Yes, you're on. But because the LKK says that LK and pardon me, amendments made, I mean, argument, a stopper was created by arguments as well as amendments. Well, but the question would be, is what is the same kind of analysis under Festo applicable? I think it is. I submit it as it has to be, it has to be in my view. Have we so stated? I didn't think the LKK said just that
. It did not say just that. That's me talking here. There's also the issue of disclaimer. I'm running out of time very quickly. They said, you use a fatty acid waxes or necessary. You could use fatty acid waxes with non fatty acid waxes, but the fatty acid waxes have to be in a distinct majority. That's a disclaimer of only using non fatty acid wax. That's what EEI did in the second process, which was called the current process by the district court, and what it did in its reformulated process in using PE wax. That ends my time except for seven seconds. I will reserve your rebuttal time and restore it, rather. Let's hear from the haplies, then, Mr. Surnow. Good morning. May I please the court, Mark Surnow, on behalf of the haplies. Your honor started with some discussion of the consisting of limitation. I'd like to start there
. What they're seeking, what EEI is seeking on appeal here, and they have not sought this construction before. This is not a construction. It's not a district court. We think it's a waived argument, but getting to the argument, they're seeking a construction that divorces this term consisting of a water alcohol mixture from reality. This court has repeatedly stated that clamped construction must be done and must be grounded in the reality of one of ordinary skill on the yard. As your honor pointed out, when one of ordinary skill in this art goes and looks for an industrial alcohol, they will be denatured alcohols that have impurities such as MIPK in them. There is a bit of a dispute as to the state of the record evidence on that issue. Can you point us to where we should look to ascertain whether that point was in the record? They cited in their reply, where various places where they thought that they had preserved the issue. No, I don't mean the preservation. I mean the question of whether MIPK is invariably associated with alcohol and in industrial use. I believe that's an 8297-1 and 7-2 in the record, where their expert testified that typically these MIPK, denaturing agents such as MIPK, are associated with commercial alcohols. Again, on 2.972, it's in the record. The district court properly relied on that evidence from E.S.I
. expert that MIPK was both an impurity and an impurity that was ordinarily associated with out commercial alcohols. What we have here is they're trying to construe this in a vacuum, ignore the reality that one of our ordinary skill understands and exclude everything, including impurities that are normally in alcohols. The district court properly looked at this through the prism of one of our ordinary skill in the art and found that what was in there, the non-alcohol, non-water components were impurities and properly found this claim to be in France. Is there any evidence in a record to show that the MIPK does help in the suspension? I don't believe there's any evidence to that, Your Honor. So it's totally an impurity. It's totally an impurity. Totally there just to, again, poison the alcohol so it can't be drinkable, so you don't have to pay tax to transport it over state lines. Well, of course the concern here is here. The opposing counsel raises is that there's a danger of moving to the basic legal test for consisting essentially of, which would be a substance that doesn't have a material effect, but nonetheless it's present, and as opposed to consisting of, which is necessarily a narrower standard. How was laid out, I think, of the ex-partait Davis case, and we laid out it our brief. I think it's very clear the difference between consisting of and consisting of. But the problem with your argument is that it tends to, perhaps it doesn't cross the line, but it sort of nudges up against the line, and so I'm looking for guidance from you as to what it is that clearly justifies putting this substance on the consisting of, side of the line, as opposed to consisting essentially of. Well, you know, you look at consisting of, and it excludes everything else, consisting essentially of, you can add in anything in the world that doesn't seem to be a novel in characteristics of the claim. With consisting of, you're limited to water or water alcohol mixtures. We had a water alcohol mixture with impurities board and nearly associated with the recited elements. That's what consisting of says, and it's a closed claim, we agree with that
. But you need to look at it through the prism of one of the workers skill in the art, and one of the workers skill in the art understands, especially in this industrial context, you're going to use alcohols that have the denaturing agent like M.I.B.K. and that's why this falls on the consisting of, side of the line. With respect to, and then the district courts finding, again, not clearly erroneous, we move out of claim construction into the factual finding, not clearly erroneous to rely on their experts' testimony to find that this element was present. With respect to the water alcohol mixture element, what do you, I argue, follow? I mean, normally the impurities, I mean, it seems to me that this is kind of stretching the term impurities. I mean, I recognize that the term was used in the evidence, but you think of normally impurities as two parts per billion of yesterday's ham sandwich finds its way into a vat of some substance, and that's not going to be enough to take it outside of the consisting of language, for sure. But this is more than what you would normally think of as an impurity, that is, that something that somehow necessarily comes along with any, as a chemical matter, it can't be eliminated, necessarily comes along with the chemistry. This is something somebody intentionally put in as another ingredient, for reasons that may have everything to do with the legal requirements, et cetera, et cetera, but nonetheless was placed in, and that seems to be different from the normal context of impurity. I guess the answer to that was it would be going back to looking at this from the perspective of Warner Warrior skill in the art. One of Warner skill in the art says, okay, I want to practice this claim, let me go get an industrial chemical to practice this claim. You go and get an industrial chemical water alcohol mixture, it's going to have M.I.B. Can it? It doesn't matter why it's there, and probably the scientists would prefer it not be there, because of the tax laws and the nature requirements, it's there, it's an impurity, it's not useful, it doesn't provide any suspension capabilities, and that's the way Warner Warrior skill in the art was looked to practice this claim. Moving on to the water alcohol mixture element. E.I.B.B. low and is arguing here that there should be some kind of minimum percentage of water, 30% minimum limit, and I think that goes against this court's case law. The court's case law has stated many times that if there are no numerical limitations in the claim itself, they should not be imported into the claim from the specification. Here, we not only have a limitation, they're trying to import a limitation from the specification, but the specification states very clearly that the percentages of water and alcohol may vary widely and then gives the preferred ranges. And so I think it's improper to do it under the case law, but it's very clear in the specification, it instructs the people of ordinary skill that this limitation or this range does not limit the claims as E.E.I.B.B. is arguing here. With respect to the stable limitation, I believe that the district court didn't really even construe the term, it just kind of applied the term stable and non-agglomerating as it appeared. There was testimony in the record that said that people of ordinary skill understand this term and the district court properly relied on the evidence and it's at the referee for page 50 that show that their E
. Moving on to the water alcohol mixture element. E.I.B.B. low and is arguing here that there should be some kind of minimum percentage of water, 30% minimum limit, and I think that goes against this court's case law. The court's case law has stated many times that if there are no numerical limitations in the claim itself, they should not be imported into the claim from the specification. Here, we not only have a limitation, they're trying to import a limitation from the specification, but the specification states very clearly that the percentages of water and alcohol may vary widely and then gives the preferred ranges. And so I think it's improper to do it under the case law, but it's very clear in the specification, it instructs the people of ordinary skill that this limitation or this range does not limit the claims as E.E.I.B.B. is arguing here. With respect to the stable limitation, I believe that the district court didn't really even construe the term, it just kind of applied the term stable and non-agglomerating as it appeared. There was testimony in the record that said that people of ordinary skill understand this term and the district court properly relied on the evidence and it's at the referee for page 50 that show that their E.E.I. product was stable and non-agglomerating and was understood as such by people of ordinary skill. So that's with respect to the 937 patent as Mr. Eric's and I think pointed out, the issue in this case, the 937 patent relates to one product, the 151 patent, relates to a separate product that were separate findings of infringement with separate damage awards. The 151 way that could you. Sure, I will address that. I guess to start out with due respect, I think that there's been some confusion here between amendment-based to stop-all and argument-based to stop-all. And this court has instructed many times that these are two separate doctions with two separate sets of law that apply. So first, with respect. Do you think, let me go to question. Just to the crux of the argument that's made here today, do you think that setting aside amendment-based to stop-all for now and just assuming that will present argument purposes that will treat that as not having been a pertinent amendment? But based entirely on argument, stop-all, and or any limitation in the scope of equivalents that may stem from the specification, statements in the specification. Do you think that Festo applies in the argument disclaimer setting? My understanding is that Festo applies only in the amendment-based setting and that in the argument-based setting. And do you know if we have any law to that effect saying, so saying? I think we cited a case in our brief that said that these are two separate docks for anyone. Well, they are. I just wanted to know
.E.I. product was stable and non-agglomerating and was understood as such by people of ordinary skill. So that's with respect to the 937 patent as Mr. Eric's and I think pointed out, the issue in this case, the 937 patent relates to one product, the 151 patent, relates to a separate product that were separate findings of infringement with separate damage awards. The 151 way that could you. Sure, I will address that. I guess to start out with due respect, I think that there's been some confusion here between amendment-based to stop-all and argument-based to stop-all. And this court has instructed many times that these are two separate doctions with two separate sets of law that apply. So first, with respect. Do you think, let me go to question. Just to the crux of the argument that's made here today, do you think that setting aside amendment-based to stop-all for now and just assuming that will present argument purposes that will treat that as not having been a pertinent amendment? But based entirely on argument, stop-all, and or any limitation in the scope of equivalents that may stem from the specification, statements in the specification. Do you think that Festo applies in the argument disclaimer setting? My understanding is that Festo applies only in the amendment-based setting and that in the argument-based setting. And do you know if we have any law to that effect saying, so saying? I think we cited a case in our brief that said that these are two separate docks for anyone. Well, they are. I just wanted to know. I know that Festo doesn't apply in the following setting. I'm not aware of an express articulation of that, but it's my understanding that these are two separate docks for an infesto. It's clearly an amendment-based to stop-all. So with respect to the amendment-based argument-based. Well, do you want to hear argument-based? Yeah, I agree with the answer. Let's talk about argument-based. The argument that were made during prosecution very clearly focused on the prior mental-steerate partitioning agents. This was always a discussion of the fatty acid wax partitioning agents are different from, and there are criticalities of using fatty acid wax partitioning agents that separate them from the mental-steerate partitioning agents. There was never any discussion of the E.E.I. hydrocarbon waxes during prosecution. The focus was always on, and they did surrender, metal-steerate partitioning agents. But that is not what the court found to be equivalent. The court found it as equivalent, the hydrocarbon wax is that E.E
. I know that Festo doesn't apply in the following setting. I'm not aware of an express articulation of that, but it's my understanding that these are two separate docks for an infesto. It's clearly an amendment-based to stop-all. So with respect to the amendment-based argument-based. Well, do you want to hear argument-based? Yeah, I agree with the answer. Let's talk about argument-based. The argument that were made during prosecution very clearly focused on the prior mental-steerate partitioning agents. This was always a discussion of the fatty acid wax partitioning agents are different from, and there are criticalities of using fatty acid wax partitioning agents that separate them from the mental-steerate partitioning agents. There was never any discussion of the E.E.I. hydrocarbon waxes during prosecution. The focus was always on, and they did surrender, metal-steerate partitioning agents. But that is not what the court found to be equivalent. The court found it as equivalent, the hydrocarbon wax is that E.E.I. uses it. Here's what I'm sorry. It does great as a quespar wax. That was the C30. I'm trying to get to the point where is there an equivalence between the C30 wax and the fatty acid wax or the start-night? Yes. What is the equivalence? They've, I mean, the district court applied both the inter-changeability test as well as the function-way result test, and I believe the findings of fact were at late-up about 29 findings of fact on that specification. But they are chemically different. They are chemically different. There's an amide group, and we're not at a certain literal infringement here. Well, this is under DOE. Correct. And the court looked at does the hydrocarbon wax, prefer, prefer, or in the substantially the same function, in the substantially the same way to achieve substantially the same result, and found that they did, and also applied the inter-changeability test. And in fact, the district court went even further, and we put on evidence that showed applying the same test. Let's look at, let's apply the same function-way and result, and look at that, that if we've done it too broadly to see if it covers the metal steroids, and showed that it wouldn't work for the metal steroids. Kind of as a check on the function-way result test to make sure it wasn't being read too broadly, and that it was properly applied, such that it showed that the hydrocarbon wax was in its substantial difference from the fatty acid wax in the claim
.I. uses it. Here's what I'm sorry. It does great as a quespar wax. That was the C30. I'm trying to get to the point where is there an equivalence between the C30 wax and the fatty acid wax or the start-night? Yes. What is the equivalence? They've, I mean, the district court applied both the inter-changeability test as well as the function-way result test, and I believe the findings of fact were at late-up about 29 findings of fact on that specification. But they are chemically different. They are chemically different. There's an amide group, and we're not at a certain literal infringement here. Well, this is under DOE. Correct. And the court looked at does the hydrocarbon wax, prefer, prefer, or in the substantially the same function, in the substantially the same way to achieve substantially the same result, and found that they did, and also applied the inter-changeability test. And in fact, the district court went even further, and we put on evidence that showed applying the same test. Let's look at, let's apply the same function-way and result, and look at that, that if we've done it too broadly to see if it covers the metal steroids, and showed that it wouldn't work for the metal steroids. Kind of as a check on the function-way result test to make sure it wasn't being read too broadly, and that it was properly applied, such that it showed that the hydrocarbon wax was in its substantial difference from the fatty acid wax in the claim. What gives me pause here about that argument is that, as I understand the chemistry, metal steroid is much closer to the fatty acid than the pure hydrocarbon acid is. That's actually incorrect, right? Well, there's testimony in the record from E.E.I.Zone expert that the metal steroid and the hydrocarbon wax are on completely two ends of the spectrum. The polarity of these materials is what matters for how they interact with the alcohol suspension and the polymer, and there was testimony that the metal steroids are the most polar, hydrocarbon waxes are the least polar, and the fatty acid waxes were right next to the hydrocarbon wax is on the end of the continual. And so in chemical terms, that the two waxes are much more alike than the metal steroids. I think what your honor is focused on is a statement in the prosecution history by the examiner where they were wondering whether if there was some terminology used to define the fatty acid wax whether that might confuse it or might be argued to go back onto the metal steroids if you can stoop fatty acid wax in a certain way. And that's why the examiner kind of came to this steroids and similar M.I.N. derivatives to avoid that potential for confusion. But with respect to how these chemical constituents actually interacted in the suspension, the testimony was that the two waxes of E.E.I. and the fatty acid wax were very similar and the metal steroids were different
. What gives me pause here about that argument is that, as I understand the chemistry, metal steroid is much closer to the fatty acid than the pure hydrocarbon acid is. That's actually incorrect, right? Well, there's testimony in the record from E.E.I.Zone expert that the metal steroid and the hydrocarbon wax are on completely two ends of the spectrum. The polarity of these materials is what matters for how they interact with the alcohol suspension and the polymer, and there was testimony that the metal steroids are the most polar, hydrocarbon waxes are the least polar, and the fatty acid waxes were right next to the hydrocarbon wax is on the end of the continual. And so in chemical terms, that the two waxes are much more alike than the metal steroids. I think what your honor is focused on is a statement in the prosecution history by the examiner where they were wondering whether if there was some terminology used to define the fatty acid wax whether that might confuse it or might be argued to go back onto the metal steroids if you can stoop fatty acid wax in a certain way. And that's why the examiner kind of came to this steroids and similar M.I.N. derivatives to avoid that potential for confusion. But with respect to how these chemical constituents actually interacted in the suspension, the testimony was that the two waxes of E.E.I. and the fatty acid wax were very similar and the metal steroids were different. Well, perhaps as to function but structure, the structure of the metal steroids looks a lot more like the fatty acid waxes as I view the structure as opposed to the hydrocarbon waxes which is a succinct of alkene. Yeah, well there is a functional group with respect to both the fatty acid wax and the metal steroids. But the issue is the metal, the metal steroids have metal in them, creates a very polar charge on the end whereas if you just put an M.I.N.G. it's not really different than having a straight chain hydrocarbon. So that's kind of the chemical explanations to why the waxes are very similar and work. And again, the metal steroids don't. Okay. Now how about the statement in the specification? Let me see if I've got the right statement. It is necessary that the weight of non-fatty acid wax partitioning agents be in a distinct minority. I think if you look closely at that statement, I think there's a couple of statements in the specification. Yeah. Always right after that statement about it being necessary, it's always talking about comparing it to the metal steroids. You need the fatty acid wax as compared to the metal steroids because the metal steroids will not work in an alcohol suspension
. Well, perhaps as to function but structure, the structure of the metal steroids looks a lot more like the fatty acid waxes as I view the structure as opposed to the hydrocarbon waxes which is a succinct of alkene. Yeah, well there is a functional group with respect to both the fatty acid wax and the metal steroids. But the issue is the metal, the metal steroids have metal in them, creates a very polar charge on the end whereas if you just put an M.I.N.G. it's not really different than having a straight chain hydrocarbon. So that's kind of the chemical explanations to why the waxes are very similar and work. And again, the metal steroids don't. Okay. Now how about the statement in the specification? Let me see if I've got the right statement. It is necessary that the weight of non-fatty acid wax partitioning agents be in a distinct minority. I think if you look closely at that statement, I think there's a couple of statements in the specification. Yeah. Always right after that statement about it being necessary, it's always talking about comparing it to the metal steroids. You need the fatty acid wax as compared to the metal steroids because the metal steroids will not work in an alcohol suspension. And every time there's a discussion of fatty acid wax being necessary, of course, it's in the clandestine, all the clandestines. But whenever they distinguish any prior art, they're always talking about the metal steroids that will cause agglomeration products, all this stuff to stick together. And the testimony was, again, the district court and we put on evidence that compared function-way result and showed the metal steroids won't work, but the E.E.I. waxes work exactly the way the fatty acid waxes do in the patent. So to sum up, I think the district court, you can go through and see that there's 312 findings of fact and 64 conclusions of law, it was a very well-reasoned and methodical application of all the proper legal doctrines here. And we think the district court got it right and should be affirmed. Thank you. And unless there's other questions, I'll see my time. Questions? Questions? Thank you. Thank you. Mr. Erickson, I think we give him you back your three minutes. So I'm afraid to take as much as you need of it. I'll try to be brave
. And every time there's a discussion of fatty acid wax being necessary, of course, it's in the clandestine, all the clandestines. But whenever they distinguish any prior art, they're always talking about the metal steroids that will cause agglomeration products, all this stuff to stick together. And the testimony was, again, the district court and we put on evidence that compared function-way result and showed the metal steroids won't work, but the E.E.I. waxes work exactly the way the fatty acid waxes do in the patent. So to sum up, I think the district court, you can go through and see that there's 312 findings of fact and 64 conclusions of law, it was a very well-reasoned and methodical application of all the proper legal doctrines here. And we think the district court got it right and should be affirmed. Thank you. And unless there's other questions, I'll see my time. Questions? Questions? Thank you. Thank you. Mr. Erickson, I think we give him you back your three minutes. So I'm afraid to take as much as you need of it. I'll try to be brave. First, with respect to the waiver issue that was brought up in Conoco's argument, the waiver issued pertaining to the consisting of language. As we pointed out in our brief, there are a number of instances in which that was brought up in the district court. Most telling is when it was brought up in my motion to stay execution of the judgment pending appeal, I argue that we should win on appeal because of the consisting language. Conoco didn't say in response to that motion, we waived that argument. They said we were just trekking out arguments that we've made before that have been considered by the court and rejected. And more significantly, the court agreed with that language that those arguments had been brought up before. With respect to the consisting of language, what they're trying to turn this turn consisting of into is consisting essentially of or even comprising. And if you don't close the set to elements other than the recited elements, that's exactly what's going to happen. The Abbott's lab's case that are pardon me that I referred to earlier, that's not in our brief indicates that when a patent he does not claim anything, other thus, without expressly indicating the selection of multiple members of a Marcush grouping, that was the issue in that case. A patent he does not claim anything other than the plain reading of the closed claim language, the plain reading of the closed claim language in this case is water and water alcohol mixtures. With respect to the amount of water in a water alcohol mixture, you cannot read the specification in a vacuum. There is no description of in the specification of the 937 patent of a material that has 2% water in it. There is the lowest description that's there in that patent is at least about 30%. Oh, about 30%. Usually, usually about 30%. The 15% maximum that EEI had in its initial process, our original process, was nowhere close to that
. First, with respect to the waiver issue that was brought up in Conoco's argument, the waiver issued pertaining to the consisting of language. As we pointed out in our brief, there are a number of instances in which that was brought up in the district court. Most telling is when it was brought up in my motion to stay execution of the judgment pending appeal, I argue that we should win on appeal because of the consisting language. Conoco didn't say in response to that motion, we waived that argument. They said we were just trekking out arguments that we've made before that have been considered by the court and rejected. And more significantly, the court agreed with that language that those arguments had been brought up before. With respect to the consisting of language, what they're trying to turn this turn consisting of into is consisting essentially of or even comprising. And if you don't close the set to elements other than the recited elements, that's exactly what's going to happen. The Abbott's lab's case that are pardon me that I referred to earlier, that's not in our brief indicates that when a patent he does not claim anything, other thus, without expressly indicating the selection of multiple members of a Marcush grouping, that was the issue in that case. A patent he does not claim anything other than the plain reading of the closed claim language, the plain reading of the closed claim language in this case is water and water alcohol mixtures. With respect to the amount of water in a water alcohol mixture, you cannot read the specification in a vacuum. There is no description of in the specification of the 937 patent of a material that has 2% water in it. There is the lowest description that's there in that patent is at least about 30%. Oh, about 30%. Usually, usually about 30%. The 15% maximum that EEI had in its initial process, our original process, was nowhere close to that. As the court pointed out in the aqua-text case, and in the aqua-text case there was the issue was, what does fiber-filled batting material mean? And the court decided there based on the specification and the prosecution history, but also was involved that fiber-filled material should be limited to synthetic materials. See, 30 wax, PE wax, there's hydrocarbon wax, the evidence we have in front of you shows that PE wax was known in the prior art in Conoco's own 1985-86 vintage patents. They're indistinguishable from one another per Conoco. The doctrine of equivalents cannot be used as a matter of law to cover something that they could not have covered in the first instance when they filed the application for the 151 patent. Thank you, my time is up. Very good. Thank you, Mr. Erickson and Mr. Serinal. The case is submitted.
Charlie Mr. Erickson. Yes, ma'am, please the court. As the court knows, there's three processes of E.E.I. that are in issue in this appeal. I'd like to start with the original process, which the district court determined had infringed claim one of the 937 patent. That determination is erroneous for at least three reasons or for three reasons. The issues with respect to the 937 patent are deal with the suspending material that's used in the drag-reducing agent. Claim one uses the restrictive language selected from the group consisting of water and water alcohol mixtures to define the suspending material. Notably, this is not in our brief, the invention section of the specification of the patent uses that same restrictive language. That's well established that that restrictive language consisting of in a patent claim means I claim what follows and nothing else. That's one of the express holdings in the vehicular technology case cited in our brief. And that holding is in accord with the prior precedence of this court and its predecessor courts. Notably, two cases not cited in our brief where the Abbott-Labs case reported a 334 F31274 pinpoint 1281. And the management case reported at 793 F21279 pinpoint 1282. Have you called those cases to the attention of your opposing counsel other than right now? No, sorry. Okay, I think in the future there's a courtesy to opposing counsel to give them a chance to respond. There's also another case recently decided by this court, the Norean case December 5th, 19, are being 2005 is the best. Norean against strikers at the case you're talking about? Yes, you're right. So when claim one calls for a suspending material selected from the group consisting of water and water alcohol mixtures as a matter of law that means the suspending material must contain water and nothing else or water and alcohol and nothing else. It is undisputed that the alpha-al-2 that was used in E.E.I.'s original process contained substantive amounts of other chemicals besides water and alcohol. And as a matter of law for that reason E.E.I.'s the suspending material used in E.E.I.'s original process did not satisfy claim one of the 937 pound. And when you say other substances you're really talking about the mibK, right? Well, there's the miBK, there's the ammonia, there's the heptane, and other set out in the chart. I believe it's on page 8 of the blue brief. But what evidence is there in a record to show that the miDK did assist in the suspension? Why was the miDK used? The miBK is in, pardon me, denatured alcohol you're on. So it's not drinkable? Yes, so the ethanol is not drinkable. Yes, sir, that's correct. And that's what E.E.I. bought to use as a suspending material in its original process. It didn't have water and alcohol, but the miBK, I'm sorry, go ahead. But did the miBK actually act as a suspension? He coughed and I didn't hear you, I'm sorry. Did the miBK act as a suspension? I don't think so, Your Honor, there's no evidence of that that I know of. So it was not a suspension element. It was only used for the specific purpose of making it non-drinkable. I'm sure it would affect the suspension somehow, but you're honest. There's no evidence in the record to do. I don't know of any, that's correct. Your expert on his deposition called all those extrachemicals impurities. And there's some argument that impurities could be associated with the consisting of ingredients and still satisfy the claim. Well, I thank Your Honor, in that regard, the impurities, if we're going to include the possibility of impurities in the consisting of language, have to be impurities, ordinarily associated with the claimed elements, i.e. impurities of water and water alcohol mixture. And there's no evidence at all that these other chemicals that are in the denatured alcohol are impurities of a water alcohol mixture. Well, there was some argument, at least, that miBK was always in the denatured alcohol. Yes, but I think I've used for industrial purposes. There was that argument, but I think the focus has to be in the first instance, when we're construing the claim on the claimed compounds, water alcohol, and what are the impurities or narrowly associated with water in alcohol mixtures. I wonder if one way of looking at this issue is to say that the term alcohol in a purely chemical sense, at least with respect to ethanol, is a particular substance. But when you use it in the context of a reference to the commercial use of alcohol that it naturally includes ordinarily miBK, and therefore water alcohol in this context includes a component that denatures the alcohol. If I go to the drugstore, for example, to buy a bottle of alcohol, I'm not going to get 100% or even really very close to 100% alcohol. It will be alcohol, but it'll not be 91% typically. But I would call it alcohol. If I mixed it with water, I would call that an alcohol water mixture because the 9% that's left over is basically just goes with the product alcohol. Isn't that a reasonable way to look at the use of the term alcohol in the context of this pattern? I'm sorry, Judge. I wasn't clear, perhaps. Well, what I'm saying is, can you view the term alcohol as used with reference to an industrial substance as already incorporating the miBK component that needs to be included in order for that alcohol to be used in an industrial setting? I guess you can, but I think we still need to focus on the claim language first and on the claim compound. And if we're going to include impurities, they have to be impurities ordinarily associated with a water alcohol mixture, which the miBK, there's no evidence that miBK is ordinarily associated with an alcohol mixture. The second point I'd like to make is what is the amount? What is the district court's interpretation of the amount of water that needs to be in a water alcohol mixture? The district court interpreted this amount as being satisfied by more than a more than negligible amount of water. And the district court also indicated that the suspending material must be made with some non-consequential amount of water. The words negligible and non-inconssequential are nowhere to be found in the 937 pattern, but what the 937 pattern in disputability teaches is that a water alcohol mixture usually has a minimum of about 30 percent water and more usually 50 to 70 percent water by weight. The two examples in the pattern have water content of 50 percent weight. If we look at the entirety of the specification, we don't find anywhere where there's a description of a water alcohol mixture that could range between 2 percent water and 100 percent water, which would occur under the district courts into a partition. And Conaco, I submit, is just not entitled to a construction of the amount of water in a water alcohol mixture, which is divorced from the specification, and that's exactly what occurred in this case. There are two very recent cases decided by this court, the aquatex case and the niestrum case, both of which support the proposition that the minimum amount of water in a water alcohol mixture as that term is used in the 937 pattern should be 30 percent. And the alpha-2 used in the original process did not have anywhere near that amount of water. Stable is the other term with respect to the 937 pattern, the specification defined stable as that the suspensions obtained by the described procedures are homogeneous dispersions, stable, non-evalomerating, and maybe shipped over long distances while retaining the properties. There's absolutely no evidence in the record that I've found anyway that shows that EEI's original product made by the original process, satisfied that definition. If I would, I have a visual aid work going to turn now, and my time is flaking to the, and I have this is the equivalent issue on the 151. Yes, yes, your honor it is. We're going to turn to the 151 pattern having to do with the doctrine of equivalents. Excuse me, Council. One question. Yes. With respect to the C30 plus wax, how is that the chemically different from the fatty acid wax? Is there a difference? It is, and your honor, I am not a chemist, and I cannot articulate it. When you get down here to the ceramides though, what the thing which is down from the fatty acid wax is the fact that they have a nitrogen, it's in H2 attached to the molecule, nitrogen and two hydrogens, and that's the amen part of it as I understand it. That distinguishes them from EEI wax or C30. Which have pure hydrocarbon. Yes, your hydrocarbon wax. Yes, your honor. And for the district court, about claim 21 issue, this claim won in the 151 pattern, and it started out claiming any partition major, which is represented by the big box. There was an amendment to claim 21, which narrowed claim 21, the fatty acid wax, then there was an argument in the framework office that narrow fatty acid waxes to ceramides and other amen derivatives, this green part and the chart here, the district court. Flatly vacuated the claim limitation when it found that C30 plus wax satisfied the fatty acid wax limitation under the doctrine of the court. Let's set aside for a moment the amendment aspect of your argument and assume as the Apple E's argue that that was just effectively a correction of a ministerial error and was not intended to be a contraction of the scope of the claim for purposes of patentability. And just look at the argument aspect in which the argument was made that ceramides were disclaimed as a subset that what otherwise would have been a subset of fatty acid waxes. Why would that disclaimer also constitute an implied disclaimer of the pure hydrocarbon waxes? Well, I think if I understand your question, yes. That would be the situation where argument reduced the scope. Correct. But starting with the bottom half of your chart, right, and you reduced the scope from of the bottom half by removing some elements. But why does that affect the question of whether equivalents are still available to other substances? That affects the answer to your question as this year on. Based on Festo, they kind of go half-prisoned, to have surrendered this area between the original claim limitation which were assuming contained fatty acid wax and the narrow claim limitation which is by argument, ceramides, and similar aiming derivatives. Festo says they're presumed to give up this area. Festo further said, and I think by aggro, the case cited in my reply, I read further in the case that this is the area that they're presumed to have given up. They can show if they can overcome the presumption of Festo, they may be able to snare something in that area. But nothing is going to let them go out of that area in the first place, go broader than the original claim limitation which were assuming for purposes of this question was fatty acid wax. They've gone broader than the original claim limitation. You're using Festo in the context of an argument as opposed to an amendment. Yes, you're on. But because the LKK says that LK and pardon me, amendments made, I mean, argument, a stopper was created by arguments as well as amendments. Well, but the question would be, is what is the same kind of analysis under Festo applicable? I think it is. I submit it as it has to be, it has to be in my view. Have we so stated? I didn't think the LKK said just that. It did not say just that. That's me talking here. There's also the issue of disclaimer. I'm running out of time very quickly. They said, you use a fatty acid waxes or necessary. You could use fatty acid waxes with non fatty acid waxes, but the fatty acid waxes have to be in a distinct majority. That's a disclaimer of only using non fatty acid wax. That's what EEI did in the second process, which was called the current process by the district court, and what it did in its reformulated process in using PE wax. That ends my time except for seven seconds. I will reserve your rebuttal time and restore it, rather. Let's hear from the haplies, then, Mr. Surnow. Good morning. May I please the court, Mark Surnow, on behalf of the haplies. Your honor started with some discussion of the consisting of limitation. I'd like to start there. What they're seeking, what EEI is seeking on appeal here, and they have not sought this construction before. This is not a construction. It's not a district court. We think it's a waived argument, but getting to the argument, they're seeking a construction that divorces this term consisting of a water alcohol mixture from reality. This court has repeatedly stated that clamped construction must be done and must be grounded in the reality of one of ordinary skill on the yard. As your honor pointed out, when one of ordinary skill in this art goes and looks for an industrial alcohol, they will be denatured alcohols that have impurities such as MIPK in them. There is a bit of a dispute as to the state of the record evidence on that issue. Can you point us to where we should look to ascertain whether that point was in the record? They cited in their reply, where various places where they thought that they had preserved the issue. No, I don't mean the preservation. I mean the question of whether MIPK is invariably associated with alcohol and in industrial use. I believe that's an 8297-1 and 7-2 in the record, where their expert testified that typically these MIPK, denaturing agents such as MIPK, are associated with commercial alcohols. Again, on 2.972, it's in the record. The district court properly relied on that evidence from E.S.I. expert that MIPK was both an impurity and an impurity that was ordinarily associated with out commercial alcohols. What we have here is they're trying to construe this in a vacuum, ignore the reality that one of our ordinary skill understands and exclude everything, including impurities that are normally in alcohols. The district court properly looked at this through the prism of one of our ordinary skill in the art and found that what was in there, the non-alcohol, non-water components were impurities and properly found this claim to be in France. Is there any evidence in a record to show that the MIPK does help in the suspension? I don't believe there's any evidence to that, Your Honor. So it's totally an impurity. It's totally an impurity. Totally there just to, again, poison the alcohol so it can't be drinkable, so you don't have to pay tax to transport it over state lines. Well, of course the concern here is here. The opposing counsel raises is that there's a danger of moving to the basic legal test for consisting essentially of, which would be a substance that doesn't have a material effect, but nonetheless it's present, and as opposed to consisting of, which is necessarily a narrower standard. How was laid out, I think, of the ex-partait Davis case, and we laid out it our brief. I think it's very clear the difference between consisting of and consisting of. But the problem with your argument is that it tends to, perhaps it doesn't cross the line, but it sort of nudges up against the line, and so I'm looking for guidance from you as to what it is that clearly justifies putting this substance on the consisting of, side of the line, as opposed to consisting essentially of. Well, you know, you look at consisting of, and it excludes everything else, consisting essentially of, you can add in anything in the world that doesn't seem to be a novel in characteristics of the claim. With consisting of, you're limited to water or water alcohol mixtures. We had a water alcohol mixture with impurities board and nearly associated with the recited elements. That's what consisting of says, and it's a closed claim, we agree with that. But you need to look at it through the prism of one of the workers skill in the art, and one of the workers skill in the art understands, especially in this industrial context, you're going to use alcohols that have the denaturing agent like M.I.B.K. and that's why this falls on the consisting of, side of the line. With respect to, and then the district courts finding, again, not clearly erroneous, we move out of claim construction into the factual finding, not clearly erroneous to rely on their experts' testimony to find that this element was present. With respect to the water alcohol mixture element, what do you, I argue, follow? I mean, normally the impurities, I mean, it seems to me that this is kind of stretching the term impurities. I mean, I recognize that the term was used in the evidence, but you think of normally impurities as two parts per billion of yesterday's ham sandwich finds its way into a vat of some substance, and that's not going to be enough to take it outside of the consisting of language, for sure. But this is more than what you would normally think of as an impurity, that is, that something that somehow necessarily comes along with any, as a chemical matter, it can't be eliminated, necessarily comes along with the chemistry. This is something somebody intentionally put in as another ingredient, for reasons that may have everything to do with the legal requirements, et cetera, et cetera, but nonetheless was placed in, and that seems to be different from the normal context of impurity. I guess the answer to that was it would be going back to looking at this from the perspective of Warner Warrior skill in the art. One of Warner skill in the art says, okay, I want to practice this claim, let me go get an industrial chemical to practice this claim. You go and get an industrial chemical water alcohol mixture, it's going to have M.I.B. Can it? It doesn't matter why it's there, and probably the scientists would prefer it not be there, because of the tax laws and the nature requirements, it's there, it's an impurity, it's not useful, it doesn't provide any suspension capabilities, and that's the way Warner Warrior skill in the art was looked to practice this claim. Moving on to the water alcohol mixture element. E.I.B.B. low and is arguing here that there should be some kind of minimum percentage of water, 30% minimum limit, and I think that goes against this court's case law. The court's case law has stated many times that if there are no numerical limitations in the claim itself, they should not be imported into the claim from the specification. Here, we not only have a limitation, they're trying to import a limitation from the specification, but the specification states very clearly that the percentages of water and alcohol may vary widely and then gives the preferred ranges. And so I think it's improper to do it under the case law, but it's very clear in the specification, it instructs the people of ordinary skill that this limitation or this range does not limit the claims as E.E.I.B.B. is arguing here. With respect to the stable limitation, I believe that the district court didn't really even construe the term, it just kind of applied the term stable and non-agglomerating as it appeared. There was testimony in the record that said that people of ordinary skill understand this term and the district court properly relied on the evidence and it's at the referee for page 50 that show that their E.E.I. product was stable and non-agglomerating and was understood as such by people of ordinary skill. So that's with respect to the 937 patent as Mr. Eric's and I think pointed out, the issue in this case, the 937 patent relates to one product, the 151 patent, relates to a separate product that were separate findings of infringement with separate damage awards. The 151 way that could you. Sure, I will address that. I guess to start out with due respect, I think that there's been some confusion here between amendment-based to stop-all and argument-based to stop-all. And this court has instructed many times that these are two separate doctions with two separate sets of law that apply. So first, with respect. Do you think, let me go to question. Just to the crux of the argument that's made here today, do you think that setting aside amendment-based to stop-all for now and just assuming that will present argument purposes that will treat that as not having been a pertinent amendment? But based entirely on argument, stop-all, and or any limitation in the scope of equivalents that may stem from the specification, statements in the specification. Do you think that Festo applies in the argument disclaimer setting? My understanding is that Festo applies only in the amendment-based setting and that in the argument-based setting. And do you know if we have any law to that effect saying, so saying? I think we cited a case in our brief that said that these are two separate docks for anyone. Well, they are. I just wanted to know. I know that Festo doesn't apply in the following setting. I'm not aware of an express articulation of that, but it's my understanding that these are two separate docks for an infesto. It's clearly an amendment-based to stop-all. So with respect to the amendment-based argument-based. Well, do you want to hear argument-based? Yeah, I agree with the answer. Let's talk about argument-based. The argument that were made during prosecution very clearly focused on the prior mental-steerate partitioning agents. This was always a discussion of the fatty acid wax partitioning agents are different from, and there are criticalities of using fatty acid wax partitioning agents that separate them from the mental-steerate partitioning agents. There was never any discussion of the E.E.I. hydrocarbon waxes during prosecution. The focus was always on, and they did surrender, metal-steerate partitioning agents. But that is not what the court found to be equivalent. The court found it as equivalent, the hydrocarbon wax is that E.E.I. uses it. Here's what I'm sorry. It does great as a quespar wax. That was the C30. I'm trying to get to the point where is there an equivalence between the C30 wax and the fatty acid wax or the start-night? Yes. What is the equivalence? They've, I mean, the district court applied both the inter-changeability test as well as the function-way result test, and I believe the findings of fact were at late-up about 29 findings of fact on that specification. But they are chemically different. They are chemically different. There's an amide group, and we're not at a certain literal infringement here. Well, this is under DOE. Correct. And the court looked at does the hydrocarbon wax, prefer, prefer, or in the substantially the same function, in the substantially the same way to achieve substantially the same result, and found that they did, and also applied the inter-changeability test. And in fact, the district court went even further, and we put on evidence that showed applying the same test. Let's look at, let's apply the same function-way and result, and look at that, that if we've done it too broadly to see if it covers the metal steroids, and showed that it wouldn't work for the metal steroids. Kind of as a check on the function-way result test to make sure it wasn't being read too broadly, and that it was properly applied, such that it showed that the hydrocarbon wax was in its substantial difference from the fatty acid wax in the claim. What gives me pause here about that argument is that, as I understand the chemistry, metal steroid is much closer to the fatty acid than the pure hydrocarbon acid is. That's actually incorrect, right? Well, there's testimony in the record from E.E.I.Zone expert that the metal steroid and the hydrocarbon wax are on completely two ends of the spectrum. The polarity of these materials is what matters for how they interact with the alcohol suspension and the polymer, and there was testimony that the metal steroids are the most polar, hydrocarbon waxes are the least polar, and the fatty acid waxes were right next to the hydrocarbon wax is on the end of the continual. And so in chemical terms, that the two waxes are much more alike than the metal steroids. I think what your honor is focused on is a statement in the prosecution history by the examiner where they were wondering whether if there was some terminology used to define the fatty acid wax whether that might confuse it or might be argued to go back onto the metal steroids if you can stoop fatty acid wax in a certain way. And that's why the examiner kind of came to this steroids and similar M.I.N. derivatives to avoid that potential for confusion. But with respect to how these chemical constituents actually interacted in the suspension, the testimony was that the two waxes of E.E.I. and the fatty acid wax were very similar and the metal steroids were different. Well, perhaps as to function but structure, the structure of the metal steroids looks a lot more like the fatty acid waxes as I view the structure as opposed to the hydrocarbon waxes which is a succinct of alkene. Yeah, well there is a functional group with respect to both the fatty acid wax and the metal steroids. But the issue is the metal, the metal steroids have metal in them, creates a very polar charge on the end whereas if you just put an M.I.N.G. it's not really different than having a straight chain hydrocarbon. So that's kind of the chemical explanations to why the waxes are very similar and work. And again, the metal steroids don't. Okay. Now how about the statement in the specification? Let me see if I've got the right statement. It is necessary that the weight of non-fatty acid wax partitioning agents be in a distinct minority. I think if you look closely at that statement, I think there's a couple of statements in the specification. Yeah. Always right after that statement about it being necessary, it's always talking about comparing it to the metal steroids. You need the fatty acid wax as compared to the metal steroids because the metal steroids will not work in an alcohol suspension. And every time there's a discussion of fatty acid wax being necessary, of course, it's in the clandestine, all the clandestines. But whenever they distinguish any prior art, they're always talking about the metal steroids that will cause agglomeration products, all this stuff to stick together. And the testimony was, again, the district court and we put on evidence that compared function-way result and showed the metal steroids won't work, but the E.E.I. waxes work exactly the way the fatty acid waxes do in the patent. So to sum up, I think the district court, you can go through and see that there's 312 findings of fact and 64 conclusions of law, it was a very well-reasoned and methodical application of all the proper legal doctrines here. And we think the district court got it right and should be affirmed. Thank you. And unless there's other questions, I'll see my time. Questions? Questions? Thank you. Thank you. Mr. Erickson, I think we give him you back your three minutes. So I'm afraid to take as much as you need of it. I'll try to be brave. First, with respect to the waiver issue that was brought up in Conoco's argument, the waiver issued pertaining to the consisting of language. As we pointed out in our brief, there are a number of instances in which that was brought up in the district court. Most telling is when it was brought up in my motion to stay execution of the judgment pending appeal, I argue that we should win on appeal because of the consisting language. Conoco didn't say in response to that motion, we waived that argument. They said we were just trekking out arguments that we've made before that have been considered by the court and rejected. And more significantly, the court agreed with that language that those arguments had been brought up before. With respect to the consisting of language, what they're trying to turn this turn consisting of into is consisting essentially of or even comprising. And if you don't close the set to elements other than the recited elements, that's exactly what's going to happen. The Abbott's lab's case that are pardon me that I referred to earlier, that's not in our brief indicates that when a patent he does not claim anything, other thus, without expressly indicating the selection of multiple members of a Marcush grouping, that was the issue in that case. A patent he does not claim anything other than the plain reading of the closed claim language, the plain reading of the closed claim language in this case is water and water alcohol mixtures. With respect to the amount of water in a water alcohol mixture, you cannot read the specification in a vacuum. There is no description of in the specification of the 937 patent of a material that has 2% water in it. There is the lowest description that's there in that patent is at least about 30%. Oh, about 30%. Usually, usually about 30%. The 15% maximum that EEI had in its initial process, our original process, was nowhere close to that. As the court pointed out in the aqua-text case, and in the aqua-text case there was the issue was, what does fiber-filled batting material mean? And the court decided there based on the specification and the prosecution history, but also was involved that fiber-filled material should be limited to synthetic materials. See, 30 wax, PE wax, there's hydrocarbon wax, the evidence we have in front of you shows that PE wax was known in the prior art in Conoco's own 1985-86 vintage patents. They're indistinguishable from one another per Conoco. The doctrine of equivalents cannot be used as a matter of law to cover something that they could not have covered in the first instance when they filed the application for the 151 patent. Thank you, my time is up. Very good. Thank you, Mr. Erickson and Mr. Serinal. The case is submitted