Font versus Cabot Mike Crowe, Mr. Stoner? Thank you, Your Honor. And please the court. The claim construction issue in this case is whether an ingredient in the claimed composition must come from a certain class of compounds or else be capable of functioning in a certain way in the composition. But could you help me understand this? What is the catalyst here? Is it the iron silicate compound? It is the iron on the silica that acts as the catalyst, Your Honor. That is what, indeed, DNA and materials on witnesses have testified. As opposed to the iron silicate compound, being the catalyst? As opposed, that is the record testimony. Now, the claim does allow compounds, as well as elements, to be the catalyst. So it's not consequential one way or the other. There wouldn't be consequential if the catalyst were the iron silicate compound. My understanding is that compound only has a single oxidation state. Iron is an intrinsic matter. No, no, I'm talking about the compound itself. It's if I believe Dr. Thomas, their expert witness, said the catalyst is the FE plus three oxidation state of iron. That's on the catalyst. But if the iron silicate compound is the catalyst, that only has a single oxidation state, right? No, the iron, even in the compound, I'm talking about the iron, I'm talking about the compound. The iron in the compound only has a single oxidation state. That is an intrinsic matter, Your Honor. What does that mean? It's a descriptive term in a textbook, as people say, is denoting a class, describing a class of compounds that have multiple oxidation states. So there's opposed to a class of compounds that don't
. I'm sorry, I don't understand. Iron has multiple oxidation states, but my understanding is that the iron silicate compound only has a single oxidation state, no? No, that's incorrect. And the catalyst here, according to the record, is the iron that is adhered to the outside of the silica. And iron as an intrinsic matter has multiple oxidation. What's the end of this adherence occurred during the CMP process itself? No, it's in the, when the composition is made, the iron catalyst is stuck to the silica abrasion. So the oxidation state of the iron occurs prior to mixing the compound together and using it in the CMP process, a slurry, making the slurry and then using that in the CMP process. If I understand the honest question correctly, the iron always has multiple oxidation states. It is, in this case, stuck, adhered to the silica abrasive before the polishing. And... Chemically attached. It is chemically and physically attached, as I understand it. And once it's attached, there's only a single oxidation. No, that's not correct, Your Honor. There's no requirement of a change in oxidation state. Iron, as we've asked, you know, even the experts, as people skilled in the art understand, if you ask them, does iron have multiple oxidation states? And the answer was yes, of course. But that's not the question I used to. The question is, when it is chemically bonded with the silica, does that compound have multiple oxidations? Yes, it does, Your Honor. How do I know that? Because it's an iron compound
. In your specification in the fifth column, you talk about the catalyst must be able to shuffle electrons, meaning that in the composition, it's going to have to have multiple states in the composition because it's shuffling electrons. The first statement you made is correct. The second one is not, Your Honor, that it is true. This specification does say in one embodiment, this is a preferred embodiment, that the catalyst must shuffle electrons from the metal to the oxidizer, not from the metal to the catalyst, not from the catalyst to the oxidizer, but from the metal to the oxidizer. The patent never says that the catalyst... That means that in the composition, it's going to have multiple states. It's not necessarily your... It's the catalyst can... Well, if you're shuffling electrons, that means you're losing one, moving to a different state, right? Not through the catalyst. Not through the... Not necessarily through the catalyst. The catalyst must be able to shuffle electrons
. From the metal to the oxidizer, so the metal will lose electrons and go to the oxidizer, but that doesn't mean the catalyst changes oxidation state. And in fact, DNA and addomaterials own product. That's how they say it works, that they describe in the brief how electrons move from the metal to the oxidizer, their hydroxybratic... But that's... Maybe I'm not understanding. The chemistry here, but I thought that's because the electron was moving from the oxidizer to the catalyst to the metal. That may be one mechanism, but it's... The patent never says that it occurs. The patent never says that the catalyst changes oxidation state. It never says that. And the claims certainly don't require that. And the shuffling of electrons, DNA and addomaterials products, they say it works to shuffle electrons, from the metal to the oxidizer. Why do you claim it? If.
.. What's your saying is correct? That you just need a composition that uses iron. Why do you claim it as a composition with multiple... Oxid with MOS, multiple oxidation states? Why don't you just say... And at least one iron catalyst? The answer is... Or catalyst of the iron group, you know, the section of the periodic table that has the same characteristics as iron. Based on the record... Why don't you just say that in your claim? Based on the record, your honor, the embedders could have done that. And as long as the iron was acting as a catalyst, which in this case, there's no dispute that it is, that the multiple oxidation states, that's what the embedders were working with. You could have done that, but you didn't. We did not. Now, why don't we hold you to what you did, which suggests that the composition, meaning when it's in the composition, it's going to have multiple oxidation states, shuffling electrons, one state to another, which you also say in your specification
. Why don't we hold you to that if you could have claimed it in a clear way? Well, your honor, I think there are two answers to that. The inventors claimed what they were working, which were catalysts that have multiple oxidation states. There are some catalysts that don't. Halogens, alkaline metals don't have catalysts, but they don't have multiple oxidation states. The inventors claimed what they were working with. Based on the record, the prior art showed no mechanical polishing slurry with a catalyst at all, of any sort. We're not asking to be relieved from what we claimed, at all. We, the claim is limited. The claim is limited to catalysts that come from the class of compounds that have multiple oxidation states. Wouldn't it have been a lot simpler just to say iron compounds? There are other catalysts that have multiple oxidation states besides iron. But you could have said exactly what you just said, or at least one catalyst in the class, including iron. There are, including in the class, that could have been claimed. It could have been claimed. The way it was claimed though, was to claim catalysts of all, all catalysts within the class that have multiple oxidation states, meaning they might exist in different oxidation states in nature. It's a simple matter of a textbook that you go to a textbook, person skilled in the art, and say, does this element have multiple oxidation states and some do and some don't? It is not a functional limitation within the claim. The claim does not say changing oxidation state. The specification never says changing oxidation state. During prosecution, this was treated by the examiner. The examiner even said the multi oxidation state metal could act as a catalyst without changing oxidation state. That was, I believe, page 688 of the appendix
. The examiner said that. And the examiner, as someone skilled in the art, would treat it. Treated simply the term having multiple oxidation states as a descriptive chemical term, not as a functional term. It was never suggested that iron may or may not have multiple oxidation states depending on whether or not it changes oxidation state or anything like that. It was simply an intrinsic property of the compound. But we have to assume, though, we, because you didn't appeal this aspect of the jury verdict. The jury found that the iron compound in the slurry does not have multiple oxidation states, right? No. What the jury found was that the iron compound, you would have to assume the iron compound did not change oxidation state within the composition. But the claim doesn't require that. And all that was required is that the catalyst in the composition kind of draw a distinction between, you can have multiple oxidation states, even though there's no change of oxidation states within the cat within the slurry. Absolutely, you're on it. Absolutely. That's the critical distinction. That's the critical issue in this appeal. And it's the first is a descriptive chemical term. Well known to people skilled in the art. Some elements have multiple oxidation states, some don't. The second is a functional term that talks about what this ingredient does or is capable of doing within the composition. And the claim doesn't require that. And this court's precedent says, if there isn't a function recited in the claim, you don't import it into the claim
. And that's, respectfully, what the district court did here. If you remove that functional limitation and give the claim the plain meaning, as we say, and we consistently argue throughout the case, then infringement is undisputed. At least this to the 288 patent. But your honor is hit on exactly the issue that having multiple oxidation states is descriptive of an intrinsic property. It's a chemical term that this iron can exist, might exist in different in nature and different oxidation states. Silver has a different oxidation rate also, right? I believe that's true. I mean, it's one of the elements on the element chart. As, okay. And in the prosecution history, didn't you state that the prior differ from the invention because it contains silver? The distinction in the prosecution history between the prior art, including that that used silver. And the invention was that the multi oxidation state metals, which were indisputably present in the prior art, did not act as a catalyst. Cattleist is a functional term. It is defined by what it does. But there was never a distinction made between the prior art saying that that there was a catalyst in the prior art, but it did not have multiple oxidation states. It was, the distinction was, there was no catalyst at all. In the compound. So that, that is the, the, the critical distinction. There was never any disclaimer. And, and based on the record, there actually is no prior art showing a catalyst at all in a chemical mechanical polishing composition. Whether it had multiple oxidation states or not. And in, in this case, not to repeat myself, but the invaders did, they could have claimed more than they did, but we understand we were stuck with what they claimed
. But what they claimed was a certain class of catalyst and not others. And it's, in the speed it in this case that, that DNA materials uses, one of the catalysts that they claim, which is iron, which of course has multiple oxidation. How is the iron the catalyst when the catalyst and the DuPont's accused product and iron silicon? It, it is, it is, there is no question that the iron is, is, is the catalyst. And we look at the, we look at the record, Dr. Thomas, he was asked, what is the catalyst? And he was Dr. Tom. He was the DNA materials expert witness at the trial. And there was, he was asked, what is the catalyst in the, in the, in the composition? And he said it is the iron on silicon. And that is, intrancibly has multiple. Where does he say that? I'm sorry? Where does he say that? Where does he say that? That is, it A, sorry, your honor. Question, this is A151, 151, 57. 151, 151, 18, you know, 151, 57. 151, 157. Where does he say that? It's at the top of the page. Question, again, what is the catalyst in the DA nano system answer? The actual catalyst is the iron 3 plus. That's iron in the plus 3 oxidation state. It is the active sitter that is anchored to the silicon. Well, that second sentence seems to suggest it's the compound. There is another statement at A15346. Again, Dr
. Thomas. And there was a reference to a statement that DNA nanomaterials had made in one of its patents. And the question was, does that describe the particles in the DA nano 3,600 and 3,700 slurries? Answer, it's certainly described essentially part of the action of the iron catalyst on the silicon. Yes. So, your honor, that's, I'm running out of time. Unless you have further questions, I will sit down. Thank you, Mr. donor. To give Mr. Dunner an extra two minutes, if he needs to use it, he will restore Mr. Stoner's for rebuttal time. Good morning, Your Honours. And may it please the court. The DA nano is not dispute, I call it DA nano or Dupont either way. It does not dispute that there's testimony that the iron is the catalyst. But what Mr. Stoner has ignored is the language right under what he read, 15157. It is in my opinion, it in my opinion cannot, or during this process does the iron 3 plus change oxidation states. It cannot, because the hydroxyls find it much easier to oxidize the tungsten than to do something similar with the iron. You have to look at oxidation potentials and the 288 patent knows all about oxidation potentials
. There's a ton of testimony that when the iron is bound to the silica and it is bound to the silica, it cannot change oxidation states. That testimony is not only in the page I just read, but on 16416 and 16392. Moreover, there is testimony, un-contradicted testimony that the shuffling electron statements in the column 5 of the 288 patent, that cannot take place unless the iron or the catalyst can change oxidation states in the context of the CMP. The question is asked on both of those and it is undisputed. Now as to Mr. Stoner's position that this statement in column 5 of the 288 patent is just an embodiment, that isn't what the language says. It may be in a section which talks of description of the current embodiment, but it starts out the chemical mechanical composition of this invention. And then it uses the words must, it must be able to shuffle electrons. And there's plenty of case law on the subject that when you have statements like this, even when it's in a section called the preferred environment, nevertheless that's the invention. And Kemi versus PPG 2005, Honeywell VITT 2006. The problem is an instance though Mr. Dunner of your claim construction requiring a functional aspect in a claim in a composition claim. Are you importing a function into a composition claim? Your Honor, I don't know about importing. I don't think I'm importing anything. I think the claim language dictates that. It is a function. Well, it could be read as he suggests as a property. You know, you get from the class of catalysts that have multiple oxidation states, you pick one. Your Honor, the answer is given by Council for Cabot himself on a 14601 at the pretrial conference on June the 7th, 2010. The court asked it was a debate as to what the claim meant. So the court says so the multiple oxidation states only relate to the context of the CMP, Mr. Durand, who is Cabot Council. That's correct, Your Honor. And that is quite clear from the claims themselves. Every one of the claims that we will be presenting in this trial begins with the language a chemical mechanical planarization composition. The court, that answers it. So at this hearing, they conceded the very point that is being debated today. Now, as to it being a functional composition, my recollection of the Cabot briefs is they cite cases for the proposition that there are times when you can include a functional aspect in a claim that otherwise does not recite the function. And they then self-admit that the word catalyst is a functional claim. Well, the key phrase that we are debating is catalysts having multiple oxidation states. So I would suggest that their argument about functionality is a red herring in this case. And their argument about what this claim covers and doesn't cover is also a red herring in this case. Or if I understand correctly, this the iron silicate compound is created before it's introduced into the sir slurry. And that that compound, whether it's in the slurry or not in the slurry, the iron only has a single oxidation state. Is that correct? Outside of the outside of this invention. Outside of the slurry. Outside of the slurry, iron has multiple oxidation states. That's not my question. Maybe I misunderstood you. My question is when the iron is combined with the silicate
. So the court says so the multiple oxidation states only relate to the context of the CMP, Mr. Durand, who is Cabot Council. That's correct, Your Honor. And that is quite clear from the claims themselves. Every one of the claims that we will be presenting in this trial begins with the language a chemical mechanical planarization composition. The court, that answers it. So at this hearing, they conceded the very point that is being debated today. Now, as to it being a functional composition, my recollection of the Cabot briefs is they cite cases for the proposition that there are times when you can include a functional aspect in a claim that otherwise does not recite the function. And they then self-admit that the word catalyst is a functional claim. Well, the key phrase that we are debating is catalysts having multiple oxidation states. So I would suggest that their argument about functionality is a red herring in this case. And their argument about what this claim covers and doesn't cover is also a red herring in this case. Or if I understand correctly, this the iron silicate compound is created before it's introduced into the sir slurry. And that that compound, whether it's in the slurry or not in the slurry, the iron only has a single oxidation state. Is that correct? Outside of the outside of this invention. Outside of the slurry. Outside of the slurry, iron has multiple oxidation states. That's not my question. Maybe I misunderstood you. My question is when the iron is combined with the silicate. It only can have a single oxidation state. Exactly. Whether or not it is in the slurry or iron. Exactly. It doesn't depend on the fact that it's in the slurry. That's just an inherent property of the combination of the iron and the silicate, right? That's exactly right, your honor. And their position is basically that you have to look at the iron disassociated from the silicate. And in the abstract, they refer to testimony. Does iron have multiple oxidation states? The question was detached from silicate. There was no silicate in the question. And the answer was, of course, yes. As it does. Outside, not only outside of CMP, but outside of the combination with silicate. It has multiple oxidation states. But this case is all about in the context of CMP. And that is the court's claim construction. And they acknowledge that in that context, if the district court's construction was correct, then we prevail on the ultimate question of infringement. Blue 36 note 16 is where they say that. I submit that not only do the claims themselves, as admitted by Mr. Taran, dictate this result, but I submit that the spec referring to the shuffling language that Chief Judge Ray to refer to also dictates that result
. It only can have a single oxidation state. Exactly. Whether or not it is in the slurry or iron. Exactly. It doesn't depend on the fact that it's in the slurry. That's just an inherent property of the combination of the iron and the silicate, right? That's exactly right, your honor. And their position is basically that you have to look at the iron disassociated from the silicate. And in the abstract, they refer to testimony. Does iron have multiple oxidation states? The question was detached from silicate. There was no silicate in the question. And the answer was, of course, yes. As it does. Outside, not only outside of CMP, but outside of the combination with silicate. It has multiple oxidation states. But this case is all about in the context of CMP. And that is the court's claim construction. And they acknowledge that in that context, if the district court's construction was correct, then we prevail on the ultimate question of infringement. Blue 36 note 16 is where they say that. I submit that not only do the claims themselves, as admitted by Mr. Taran, dictate this result, but I submit that the spec referring to the shuffling language that Chief Judge Ray to refer to also dictates that result. And I suggest that the prosecution history dictates that result. They had multiple references which were rejected, the claims were rejected on these references under 102 grounds. And those references disclosed every element of the claims in the 288 patent. What was their answer? Their answer was a functional answer. It was not that this doesn't have multiple oxidation states. They couldn't say that. And they couldn't say it because the references had the iron or the silver or whatever. The catalyst metal or potentially cattle or metal could be in solution. So in that context, it could have multiple oxidation states. How did they distinguish it? They distinguished it on the ground that there wasn't the right concentration of the metal to act as a catalyst. That's a functional argument. That basically undermines their argument that you can't make functional arguments. That's the prosecution history. Finally, they also distinguished these similar references in the trial on the ground. Same ground that functionally it couldn't operate as a catalyst. What is their response to that? The response says, well, that's a validity issue. Well, it may be a validity issue and we dropped our cross appeal on validity. But nevertheless, it also goes to the claim construction in this case. Now, in a few seconds I have left. Actually, I see I have more than a few seconds
. And I suggest that the prosecution history dictates that result. They had multiple references which were rejected, the claims were rejected on these references under 102 grounds. And those references disclosed every element of the claims in the 288 patent. What was their answer? Their answer was a functional answer. It was not that this doesn't have multiple oxidation states. They couldn't say that. And they couldn't say it because the references had the iron or the silver or whatever. The catalyst metal or potentially cattle or metal could be in solution. So in that context, it could have multiple oxidation states. How did they distinguish it? They distinguished it on the ground that there wasn't the right concentration of the metal to act as a catalyst. That's a functional argument. That basically undermines their argument that you can't make functional arguments. That's the prosecution history. Finally, they also distinguished these similar references in the trial on the ground. Same ground that functionally it couldn't operate as a catalyst. What is their response to that? The response says, well, that's a validity issue. Well, it may be a validity issue and we dropped our cross appeal on validity. But nevertheless, it also goes to the claim construction in this case. Now, in a few seconds I have left. Actually, I see I have more than a few seconds. But as I've been told before, I don't have to use all my time. So I may not. There's a waiver issue in this case. How could you argue waiver, Mr. Miller? Pardon? How could you argue waiver when at the charge conference at 14603 they specifically reserve the possibility of appealing from the original claim construction? Let me do my best to answer that question. The point I'm making, there are two points here. One, I think we should win regardless of waiver. But I also think there's a good waiver argument here. And here it is. We acknowledge that earlier on before that pre-trial conference, they in fact made the argument they're making today. They argued that and we don't dispute that. But at the pre-trial conference, June 7, 2010, the judge that there was a dispute, as to what the conference, not pre-trial. A charge conference, you're right. There was a dispute as to what the language meant. And there was a colloquy between the judge and the lawyers. And it goes from 14599 to 14603. Right. And that in that colloquy, Ms. Kramer specifically says, I mean, not waiving our appellate rights to challenge the original claim construction. Why do you rely on your own? It's on page 14603 at line 12
. But as I've been told before, I don't have to use all my time. So I may not. There's a waiver issue in this case. How could you argue waiver, Mr. Miller? Pardon? How could you argue waiver when at the charge conference at 14603 they specifically reserve the possibility of appealing from the original claim construction? Let me do my best to answer that question. The point I'm making, there are two points here. One, I think we should win regardless of waiver. But I also think there's a good waiver argument here. And here it is. We acknowledge that earlier on before that pre-trial conference, they in fact made the argument they're making today. They argued that and we don't dispute that. But at the pre-trial conference, June 7, 2010, the judge that there was a dispute, as to what the conference, not pre-trial. A charge conference, you're right. There was a dispute as to what the language meant. And there was a colloquy between the judge and the lawyers. And it goes from 14599 to 14603. Right. And that in that colloquy, Ms. Kramer specifically says, I mean, not waiving our appellate rights to challenge the original claim construction. Why do you rely on your own? It's on page 14603 at line 12. You're on it. That's Ms. Kramer. He's saying the KBOT that I added on the other claim construction issue, which is by entering into this compromise, et cetera, et cetera. We're not waiving our appellate rights to our original turn of definition of multiple oxidation states. You're on it. That's our council. Yeah. That's not their council. We said we are not waiving. That's not their council. Their council was asked by the judge. Okay. Do you? I made the same mistake when I was preparing for argument and I found out that Ms. Kramer was our council, not the committee council. The judge asked them, are you taking the position that the multiple oxidation states has to take place outside the context of the CMP? The answer was, now, Your Honor, and then the judge repeated it multiple times and two council, not only one of the council, but their chief council said, Your Honor, we're not taking that position. And then they said, I'd like to think about it. And the judge says, don't think about it. Well, don't this on 14603. Don't come back to the court and make the decision now
. You're on it. That's Ms. Kramer. He's saying the KBOT that I added on the other claim construction issue, which is by entering into this compromise, et cetera, et cetera. We're not waiving our appellate rights to our original turn of definition of multiple oxidation states. You're on it. That's our council. Yeah. That's not their council. We said we are not waiving. That's not their council. Their council was asked by the judge. Okay. Do you? I made the same mistake when I was preparing for argument and I found out that Ms. Kramer was our council, not the committee council. The judge asked them, are you taking the position that the multiple oxidation states has to take place outside the context of the CMP? The answer was, now, Your Honor, and then the judge repeated it multiple times and two council, not only one of the council, but their chief council said, Your Honor, we're not taking that position. And then they said, I'd like to think about it. And the judge says, don't think about it. Well, don't this on 14603. Don't come back to the court and make the decision now. I'll do my best is the answer not to come back, Your Honor. I think we can live with this construction. Mr. Stoner, it's fine, Your Honor. The court. It's fine. Thank you. The next day. So as of this moment, they not only argued that the claim required the construction that D.A. Not always arguing, but they were not going to change their minds. But the next day, they filed a paper in which they reiterated their earlier contention that they're reserving their right. I have no idea what happened to that paper. I have no idea whether the judge considered or didn't consider, I just don't know anything. But I submit, they never recanted their statement that the claims dictate a result that D.A. Not always arguing. And I suggest that that's a waiver. We get in there in the paper that they did fall, they do state that they're reserving the issue for appeal. They did, Your Honor
. I'll do my best is the answer not to come back, Your Honor. I think we can live with this construction. Mr. Stoner, it's fine, Your Honor. The court. It's fine. Thank you. The next day. So as of this moment, they not only argued that the claim required the construction that D.A. Not always arguing, but they were not going to change their minds. But the next day, they filed a paper in which they reiterated their earlier contention that they're reserving their right. I have no idea what happened to that paper. I have no idea whether the judge considered or didn't consider, I just don't know anything. But I submit, they never recanted their statement that the claims dictate a result that D.A. Not always arguing. And I suggest that that's a waiver. We get in there in the paper that they did fall, they do state that they're reserving the issue for appeal. They did, Your Honor. And what's your position then between having this oral waiver that's followed up with the written submission for an issue is preserved for appeal? Do you have any case law that would help us with that? Your Honor, this is such an unusual situation. The case law basically says that you can't change positions from below to up on appeal. But this is not what's happening. No, this is a very unusual fact pattern. I cannot give you a case with a fact pattern like this. And I cannot give you, for us, and I cannot give you a case with a fact pattern like this against us. All I'm saying is the judge says, don't come back. This is it. I want your decision now. Right before the judge, I submit, and moreover, they said the claim dictates that result. I submit that the next day a written paper does not undermine that, particularly, because they didn't recant their statement that the claim dictates the result. Yeah, but we've just had a little bit of a reason to claim construction issue at the initial markman hearing is sufficient. You don't have to reiterate your objection at the charge conference. Your Honor, in the abstract, that is true. But it's true only in the abstract. And the reason I say that is that much happened between that early, the markman, the markman ruling did not rule on multiple oxidation states. It ruled on catalyst. After the markman hearing, there was exchange summary judgment papers. The happenment. And the definitions evolved, but that the charge conference, the judge realized that they were taking a position that was incompatible with his view of what the, what the claim should mean
. And what's your position then between having this oral waiver that's followed up with the written submission for an issue is preserved for appeal? Do you have any case law that would help us with that? Your Honor, this is such an unusual situation. The case law basically says that you can't change positions from below to up on appeal. But this is not what's happening. No, this is a very unusual fact pattern. I cannot give you a case with a fact pattern like this. And I cannot give you, for us, and I cannot give you a case with a fact pattern like this against us. All I'm saying is the judge says, don't come back. This is it. I want your decision now. Right before the judge, I submit, and moreover, they said the claim dictates that result. I submit that the next day a written paper does not undermine that, particularly, because they didn't recant their statement that the claim dictates the result. Yeah, but we've just had a little bit of a reason to claim construction issue at the initial markman hearing is sufficient. You don't have to reiterate your objection at the charge conference. Your Honor, in the abstract, that is true. But it's true only in the abstract. And the reason I say that is that much happened between that early, the markman, the markman ruling did not rule on multiple oxidation states. It ruled on catalyst. After the markman hearing, there was exchange summary judgment papers. The happenment. And the definitions evolved, but that the charge conference, the judge realized that they were taking a position that was incompatible with his view of what the, what the claim should mean. And that's where they made their statement. They took their stand and response to the judges question, don't come back. They construed the claim as being, as requiring our construction. And I say that the next day they can't take it all back in a paper that is filed. But in either case, I submit that the a non-hose position is the correct position. I'm a little troubled with that position. We all know the difficulty of oral conferences in front of a judge with the pressure on. And we can find it difficult to want to disappoint the judge who's going to preside over the rest of the case. In those pressure situations, we might say one thing and then a reflection wish to preserve an argument. Doesn't that seem like the more responsible legal position to take? Your Honor, if they had taken the position the next day that we recant our statement that the claims require it, I think that might be a more compelling position. The answer is I've given you our position on this issue and I'm in the hands of the three judges on this bench. I have no further arguments unless there are questions. Thank you, Mr. Duner. Donor, we restored your two minutes. Can you address this passage on 14601 that Mr. Duner just referred to? So the multiple oxidation states only relate to the context of the CNP. That's correct your honor. Your Honor, this is not a waiver or a concession of anything. We had made the same argument to the district judge below the district court rejected it
. And that's where they made their statement. They took their stand and response to the judges question, don't come back. They construed the claim as being, as requiring our construction. And I say that the next day they can't take it all back in a paper that is filed. But in either case, I submit that the a non-hose position is the correct position. I'm a little troubled with that position. We all know the difficulty of oral conferences in front of a judge with the pressure on. And we can find it difficult to want to disappoint the judge who's going to preside over the rest of the case. In those pressure situations, we might say one thing and then a reflection wish to preserve an argument. Doesn't that seem like the more responsible legal position to take? Your Honor, if they had taken the position the next day that we recant our statement that the claims require it, I think that might be a more compelling position. The answer is I've given you our position on this issue and I'm in the hands of the three judges on this bench. I have no further arguments unless there are questions. Thank you, Mr. Duner. Donor, we restored your two minutes. Can you address this passage on 14601 that Mr. Duner just referred to? So the multiple oxidation states only relate to the context of the CNP. That's correct your honor. Your Honor, this is not a waiver or a concession of anything. We had made the same argument to the district judge below the district court rejected it. And now we are at the pretrial conference trying to craft a jury instruction reflecting the court's prior Markman rulings. We were not revisiting claim instruction issues. We were trying to come up with a claim construction ruling or a jury instruction that reflected what the court had already ruled. And we told the court that's what we were doing. And all the court said the multiple oxidation states only relate to the context of the CNP. That is not a short and reference to what we're arguing today. It is every single claim we're asserting begins with chemical mechanical polishing slurry. And so every element of that claim relates to that context. This was a question about infringement proof. D.A. in animal trails had suggested to the district court that we were going to ignore the court's claim construction ruling and present evidence that was not compatible with it. And we were assuring the district court we were not going to do that. That's all this was about briefly. I wanted to point to answer to address judge Dykes question about whether a compound with iron in it can have multiple oxidation states even if it does not change oxidation state. And I think the specification addresses that in column five it says preferably the catalyst is chosen from metal compounds that have multiple oxidation states such as but not limited to. And there's a whole list of elements not compounds elements one of those is iron. It never says that these have multiple oxidation states if they change or they might have multiple oxidation states depending on whether it says they have multiple oxidation states. And if there's iron in the thank you. Thank you, Mr
. Stoner