Legal Case Summary

. And quite frankly, neither of those predetermined temperature points is a predetermined temperature point in the Northgate device. But 37 degrees what? 37 degrees is what Dr. Bourbon says is a predetermined temperature point, but he also gives you 36.44 degrees. No, but I thought in your device that the predetermined points 37 degrees, no? No, Your Honor, in our device, our literature says that we maintain a nine degree range from... We maintain a nine degree range from 32 degrees to 41 degrees, and that's not a single temperature point. But I believe what you're referring to is an email where one of our engineers says that the 70 degree heater is maintained at 70 degrees to aim for an output of 37 degrees, but that's not a preset temperature point. At the very least, Your Honor, even assuming a 37 degree preset temperature, the test data that Dr

. Bourbon provided at 37 degrees fails to show infringement, and we can walk through that test data if you'd like. But isn't that predicated on our adopting your construction of always, rather than always, sometimes but not always? If you look at it in a sometimes but not always, that's the interpretation of bell, and under bell, under and under Lexian's interpretation of bell, we would be required to ignore the claim language. But, of course, well, firstly, bells analysis regarding sometimes but not always, it seems to me reading the case doesn't reference the specific subject matter, which seems to be your argument about why bell wouldn't apply here. It seems to be a very broad statement. That's right, Your Honor. Lexian would ask you to make bell a rule that you apply regardless of the claim language, and with regard to the claim language, when you look at the claim language here, it's clear that you cannot apply bell in a vacuum. But I guess so, but the question is not, well, I guess the bottom line in the claim language is whether or not it's states that it always has to be at this temperature rain based on the pre-determined temperature, right? You're on our item, that's your position, the claim language and the specification, compel and always on determination. The claim language requires that it needs to be at, it needs that that limitation needs to be met, and the claim language. Yeah, I thought that was your view. Not sometimes

. Do you say that claim limitation needs to sometimes be met? Do you agree with that? No, it cannot be met sometimes, but I believe the context of the claim provides more meaning than rather inserting the term always. The claim language says for an endoscopic procedure. Ms. Adi, isn't the only time that there's really a problem with that range is in the startup period, and the spec kind of specifically notes to call them nine that upon activation, there's going to be this lag time before you get into the range properly. So with the specification already acknowledging that upon activation, there'll be a lag time. Why isn't what Judge Prost is talking about, very appropriate, that it isn't always, it's most of the time, but not always? And let me clarify, we would be happy with always Judge Prost, but I think the claim language is more specific, and it says for an endoscopic procedure, always would be fine as well, but the claim language and the specification are specific to the temperature control requirements of the specification of the language. Where does that lead to? So if you're backing, if you agree always, well, what's an alternative to always that you would be comfortable with? Well, I think you have to read the claim and you have to give credence to the limitation within two degrees of the predetermined temperature, and you have to look at it. It seems to me, first of all, in our original opinion, we looked at footnote four table one as defining the claim scope. We looked at the first sentence of the footnote four in defining the claim scope. Now, it seems to me, Judge Prost, are suggesting we have to look at the second sentence for purposes of the construction that we're dealing with here

. And the second sentence clearly contemplates that there will be some times when the, there is a departure from the two degree at start-up or where is the change in the flow rate. So it seems to me you have to concede that while it indicates that the temperature shall be maintained within that range, that's not always the case. Times of start-up or flow rate change, it's not going to be the case. There are going to be some departures from that, no? In the specification, that is the case. And the applicant could have taken those exceptions into consideration when the applicant drafted the claim. For example, the applicant could have had a specific limitation in the claim taking into consideration start-up or new gas flow rate demand. The applicant didn't do that or the applicant could have drafted dependent claims that specified those times or those limitations. The applicant didn't do that. I didn't they accomplished that by language that doesn't say always and then putting it into the specification, what they really meant. Why doesn't that get the same result? Because that would be reading out the meaning of the limitation, but reading in language from the specific case

. Or can't we read the language as informing the language of the written description, as informing the language of the claim? There are times when you can do that, but in this case, it doesn't provide any meaningful language to the limitation within two degrees of the predetermined temperature because there's no way to tell when you're going to be within two degrees of the predetermined temperature as the district court's opinion reflects under that type of claim construction, the limitations meaningless because it would be met with a device that provides gas within a broad range of temperatures as long as it falls within the claimed range for a brief period. I think the second sentence suggests that of that footnote for, suggest that it is to be maintained in general within that limitation, but that you can have departures at start-up and change flow rates. The question is whether the variation here that occurred was at a start-up period or a change flow rate period. I think if you look at the data, you will find that helps you, that the change in temperature did not occur at start-up or the change flow rate. So I think your stock with footnote for, but that doesn't perhaps necessarily mean that you lose the case. I agree with you, Your Honor. I agree with you, Your Honor, and I agree with you that even under that interpretation, our test data still shows that we do not in fringe. I have another problem. I guess another question. Beyond the data that Judge Dijk and Judge Rayden refer to with that footnote, it seems to me we start with the claims and the claim we're looking at is 11-E and that has the 2% predetermined temperature

. But if you look at limitation B and C, what they talk about is part of the invention is sensing the temperature of the gas as it exits to determine if it is within the predetermined range and C says actuating the heating means if the temperature is without the predetermined range. So it seems to me that looking at the reading fairly, the entirety of the claim, it clearly contemplates that there are going to be periods of time where it's outside of the predetermined range. The invention very effectively tries to deal with that, but it's hard for me to just reading the claim one and it's claiming 11 in its entirety to not look at this and say, no, everybody clearly contemplates that it's not going to be in the plea determined range for some portions of time. And the claim includes trying to correct that. So I guess what's your answer to my reading of just the claim suggesting that a fair reading of the claim does not limit you always or even always with the exception of those two things in the spec to having a predetermined range. Do you understand what my point is? I believe I do and I believe I would take you back to the limitation E that says that the gas has to enter the patient heated and humidified having a temperature within two degrees of the predetermined temperature. So once again, it's- But we're talking about all the, we're talking about what we're looking at in terms of sometimes and always and never or whatever is the procedure in its entirety. We're not just looking at entry, are we? I thought the whole question here was sometimes and not always during the entirety of the procedure, not just the temperature at which the gas enters, right? I'm wrong about that. Maybe I'm wrong. During the plea- Please, why don't you read me B and C- Why don't you read me- One joke of limitations B and C under 11 and tell me what they are intended to what they contemplate if not that sometimes during the procedure the gas is not going to be within the predetermined range

. B and C do contemplate turning the heater on when the gas to heat the gas if necessary and so- Which is only necessary if sometimes during the procedure the gas does not fall within the predetermined range. But during the procedure the intent of the invention is to get the gas to the patient or as the gas at the predetermined range. But that's a goal. The question is what the claim contemplates in terms of how this is actually going to work and again. So what's your answer to my read of the claim that suggests that the claim contemplates that there are going to be periods of time during the procedure when the gas may not come within the predetermined range? I agree with you that the gas at different parts of the device has to not come within the predetermined range. That's the point of the device to heat the inhumidify the gas so that it comes within the predetermined range. So are we only looking for purposes of the sometimes and always or whatever it is? Are we only looking at the temperature at which the gas enters? Is that all we're talking about here? Once we are back here on remand, unfortunately we're at limitation E and we have to look at such that the gas enters the patient within two degrees of the predetermined temperature and thus providing the gas. I'd like to direct your attention to other reasons why you can reverse this case. And if you disagree with us, we believe this case needs to be remanded because we didn't get the opportunity to question Dr. Bourbon on his altered test data which we believe was improper to begin with in the first place

. He knows the test data, he just reinterpreted it, right? He didn't do new testing. That's correct, Your Honor, but I guess I should say he altered the way he interpreted the results of the data. Why is that so terrible? Because it comes in several years after the close of discovery. Came after a remand from us saying they got the claim from structural. But the remand didn't have anything to do with the way he altered the test data. The remand had to do with the predetermined temperature, not with the timing in which. Was directing himself to the change claim construction and trying to say that it's still in place? Having trouble seeing why he shouldn't be able to do that. He altered the test data at specific different points on when he wanted to consider it, which didn't have anything to do with the predetermined temperature, which is what the claim construction on remand has to do with. And still while we're here, we still while we're here upon appeal, they haven't picked one predetermined temperature. I'd like to look at Lexian's test results

. If that's okay. Lexian discredits its test number two. And it disavows test number two because it says the simulated patient didn't contact the trocar. That's it. Redbree 42 43 A 7550. Northgate asserts test number two shows non-infringement. By contrast, Lexian also admits that the simulated patient in test number one that it relies on warms the trocar. So those readings also aren't accurate. Lexian says, and I quote, as explained by Dr. Bourbon, and this is at Redbree 43, the gas within the trocar in simulated patient stays at or near the body temperature because the trocar is warmed by the body

. So the body warms the trocar. The trocar warms the gas. How do we know if the gas entering the patient is within two degrees of the predetermined temperature? At A 57, the patent teaches that the temperature will not lose more than two degrees from the apparatus to the patient. That's a column 5 line 30. Yet Bourbon's test data shows a gain of six degrees, for example, in one place. In other places, it shows other gains. That's the 10 flow data in a blue brief facing page 25. Again, the body warms the trocar. The trocar warms the gas. How do we know if it's satisfying within two degrees of the predetermined temperature when it enters the body? Therefore, Lexian's test number one is faulty. Lexian discredits test number two. So for this reason as well, you can reverse because their test data fails. If you like to, well, actually, you've used your, your, will restore your three minutes of rebuttal time and would you add three minutes to Mr. Williams' time as well? So we're even. Thank you, Your Honor. Did I give that right, Mr. Willie? Mr. Willie, yes. Thank you, Your Honor. May I please the court, David Willie, for Lexian Medical? You agree that the second sentence of footnote four is tells us what the claim means of table one and the specification

. Lexian discredits test number two. So for this reason as well, you can reverse because their test data fails. If you like to, well, actually, you've used your, your, will restore your three minutes of rebuttal time and would you add three minutes to Mr. Williams' time as well? So we're even. Thank you, Your Honor. Did I give that right, Mr. Willie? Mr. Willie, yes. Thank you, Your Honor. May I please the court, David Willie, for Lexian Medical? You agree that the second sentence of footnote four is tells us what the claim means of table one and the specification. No, Your Honor, with respect to defendant's argument, I do not. I agree that it was an appropriate place to look to define the claim when interpreting what a predetermined temperature was in the first appeal certainly. But there is no time limitation in this claim. There is a temperature range limitation. There is no time limitation in the claim at which that temperature must be met. So you think that footnote the second sentence does not tell us what the claim means? I think the second sentence does not tell you what the claim means with respect to any issue with respect to time. We certainly expect. Let's assume hypothetically we reject that. We say footnote for second sentence does tell us what the claim means and that what it says is you maintain it within the range except for periods of startup and change flow rate. Let's suppose that's the interpretation

. No, Your Honor, with respect to defendant's argument, I do not. I agree that it was an appropriate place to look to define the claim when interpreting what a predetermined temperature was in the first appeal certainly. But there is no time limitation in this claim. There is a temperature range limitation. There is no time limitation in the claim at which that temperature must be met. So you think that footnote the second sentence does not tell us what the claim means? I think the second sentence does not tell you what the claim means with respect to any issue with respect to time. We certainly expect. Let's assume hypothetically we reject that. We say footnote for second sentence does tell us what the claim means and that what it says is you maintain it within the range except for periods of startup and change flow rate. Let's suppose that's the interpretation. Okay, you understand what I'm saying? Yes. Okay, is it not the case? If you look at 14755 that the temperature changes here that occurred outside the range did not occur as the result of a change in the flow rate. 14755. At the bottom there the flow rate as I understand is in the left hand column and the temperatures in the third column at times in the second temperature in the third. Okay, and I'm just I is this which test is is test number one or test number two? You drive this this is the one you're currently relying on. Okay, test test number one. I understand if I'm wrong. Well, I think that's my understanding. You're right. I would point out of course that the table is just talking about examples and example tests

. Okay, you understand what I'm saying? Yes. Okay, is it not the case? If you look at 14755 that the temperature changes here that occurred outside the range did not occur as the result of a change in the flow rate. 14755. At the bottom there the flow rate as I understand is in the left hand column and the temperatures in the third column at times in the second temperature in the third. Okay, and I'm just I is this which test is is test number one or test number two? You drive this this is the one you're currently relying on. Okay, test test number one. I understand if I'm wrong. Well, I think that's my understanding. You're right. I would point out of course that the table is just talking about examples and example tests. But to answer the courts question when proper flow rates are considered when proper flow rates are considered, I believe the data does reflect that the temperature variations occur due to a change in flow rate. Well, because it seems to me that this shows on its face the temperature variation outside of the range does not occur as the result of a change in the flow rate. Which particular data at the bottom of 14755 where the flow rate is a constant 15 there for a while and yet the temperature goes down below the range that's specified. Well, it goes down to 34.83. Does it go outside of a four degree range? It doesn't. No, but it's here stick with my hypothetical. That's something 37 is the is the predetermined set point that the second sentence of footnote four defines the plane that has to be maintained except at times when a startup and flow rate change this data does not show it going below the two degree limit at a time of flow rate change. Right. I would have to acknowledge that based upon the page that you just showed me in the data

. But to answer the courts question when proper flow rates are considered when proper flow rates are considered, I believe the data does reflect that the temperature variations occur due to a change in flow rate. Well, because it seems to me that this shows on its face the temperature variation outside of the range does not occur as the result of a change in the flow rate. Which particular data at the bottom of 14755 where the flow rate is a constant 15 there for a while and yet the temperature goes down below the range that's specified. Well, it goes down to 34.83. Does it go outside of a four degree range? It doesn't. No, but it's here stick with my hypothetical. That's something 37 is the is the predetermined set point that the second sentence of footnote four defines the plane that has to be maintained except at times when a startup and flow rate change this data does not show it going below the two degree limit at a time of flow rate change. Right. I would have to acknowledge that based upon the page that you just showed me in the data. Can I ask you a more basic question? Yes. That goes to the line of questioning I had for Miss Addy. It seems to me the limitation we're talking about is not talking about the flow rate maintained during the entire procedure. Temperature maintained during the entire procedure. It seems to me that 11 E is speaking only to a particular period in time when the gas enters the patient. And what's wrong about that? No, you are correct that it's not talking about the entire procedure and that's because during the nature of these procedures and Dr. Bourbon's declaration explains this during laparoscopic procedures the flow stops for a period of time and what the claim limitation says is flowing the gas into the delivering means. So the temperature limitation certainly only applies when you're flowing the gas into the delivery means and it doesn't say that it always applies when you're flowing the gas into the delivery means. And is the so going back to footnote four when it says the selected temperature was maintained? Is that what we're still talking about the same period while it's flowing into the patient or is that through the whole procedure? When they talk about maintaining what? Your Honor, I think it's a reasonable interpretation of footnote four that they're talking about when the gas was flowing into the patient. It doesn't say it doesn't say one way or the other but I think that's a reasonable inference to draw

. Can I ask you a more basic question? Yes. That goes to the line of questioning I had for Miss Addy. It seems to me the limitation we're talking about is not talking about the flow rate maintained during the entire procedure. Temperature maintained during the entire procedure. It seems to me that 11 E is speaking only to a particular period in time when the gas enters the patient. And what's wrong about that? No, you are correct that it's not talking about the entire procedure and that's because during the nature of these procedures and Dr. Bourbon's declaration explains this during laparoscopic procedures the flow stops for a period of time and what the claim limitation says is flowing the gas into the delivering means. So the temperature limitation certainly only applies when you're flowing the gas into the delivery means and it doesn't say that it always applies when you're flowing the gas into the delivery means. And is the so going back to footnote four when it says the selected temperature was maintained? Is that what we're still talking about the same period while it's flowing into the patient or is that through the whole procedure? When they talk about maintaining what? Your Honor, I think it's a reasonable interpretation of footnote four that they're talking about when the gas was flowing into the patient. It doesn't say it doesn't say one way or the other but I think that's a reasonable inference to draw. Now the problem for Northgate the defendants here is that the claim construction that the court asked about has been waived. They didn't argue this except for short transient periods in the district court and they didn't argue in the district court that there was any claim language that supports their construction. This within argument that they've made on appeal is a new argument on appeal. They never argued during claim construction or during the first trial for a construction of the word within and Judge Proc. You're given one within means within, doesn't it? Doesn't that mean they have to stay within? Now within just simply sets forth the boundaries of the range. And as Judge Proc pointed out this very claim tells you that within doesn't mean always because if we look at elements A, B and C where we're talking about the temperature within the chamber we heat to a temperature within a predetermined range. We sense the temperature as it exits to determine if it's within the predetermined range and then we actuate the heating means if it's without the predetermined range. That tells you two things. First of all it tells you there argument that a temperature limitation always has to be met is dead wrong. The claim tells you it doesn't always have to be met

. Now the problem for Northgate the defendants here is that the claim construction that the court asked about has been waived. They didn't argue this except for short transient periods in the district court and they didn't argue in the district court that there was any claim language that supports their construction. This within argument that they've made on appeal is a new argument on appeal. They never argued during claim construction or during the first trial for a construction of the word within and Judge Proc. You're given one within means within, doesn't it? Doesn't that mean they have to stay within? Now within just simply sets forth the boundaries of the range. And as Judge Proc pointed out this very claim tells you that within doesn't mean always because if we look at elements A, B and C where we're talking about the temperature within the chamber we heat to a temperature within a predetermined range. We sense the temperature as it exits to determine if it's within the predetermined range and then we actuate the heating means if it's without the predetermined range. That tells you two things. First of all it tells you there argument that a temperature limitation always has to be met is dead wrong. The claim tells you it doesn't always have to be met. Second it tells you that the word within doesn't mean always when applied to a temperature range. What their argument basically comes down to since there is no time limitation in the claim is they want you to read in a limitation to the claim a time limitation into the claim based upon a policy argument. A policy argument. You make a good point that they're probably wrong that always is the wrong construction. But when we look at the second sentence of footnote four which helps us to understand when there can be a departure you seem to run away from that's the problem I mean. Well I'm not running away for it, Your Honor. My point is that there is no time limitation within the claim. If there were a time limitation in the claim then it may be appropriate to look at that but this court on two previous occasions has rejected reading in limitations into a claim because of some perceived purpose of the claim or that the claim would lead to absurd results. One example is Smith Klein Beacham versus Apatex at 403 F31331. In that case Judge Posner in the district court had read in a limitation that a chemical compound had to have a commercially significant amount of the compound because otherwise the claim wouldn't fulfill any purpose if it only covered a trace amount

. Second it tells you that the word within doesn't mean always when applied to a temperature range. What their argument basically comes down to since there is no time limitation in the claim is they want you to read in a limitation to the claim a time limitation into the claim based upon a policy argument. A policy argument. You make a good point that they're probably wrong that always is the wrong construction. But when we look at the second sentence of footnote four which helps us to understand when there can be a departure you seem to run away from that's the problem I mean. Well I'm not running away for it, Your Honor. My point is that there is no time limitation within the claim. If there were a time limitation in the claim then it may be appropriate to look at that but this court on two previous occasions has rejected reading in limitations into a claim because of some perceived purpose of the claim or that the claim would lead to absurd results. One example is Smith Klein Beacham versus Apatex at 403 F31331. In that case Judge Posner in the district court had read in a limitation that a chemical compound had to have a commercially significant amount of the compound because otherwise the claim wouldn't fulfill any purpose if it only covered a trace amount. And this court reversed and said that the scope of patent claims can either be broad or narrowed based upon abstract policy considerations. But we've got more than abstract policy here we've got a specification and fairness to the other side they're not relying on policy arguments they're pointing us to part portions of the specification including if you look at column 4 lines 54 through 60 they talk about not a policy goal of the invention but an important feature of the present invention is that lumbablaw the gas reaches the patient within two percent. So we're bound by the spec as well and this doesn't I don't think the import of this statement is sometimes I think this says it's important to the invention that the gas reached the patient within a predetermined temperature. It was also true in Smith Klein that there were statements in the specification that one purpose of the invention. Moving aside Smith Klein for a moment. Why can't we fear we read this as being that this is what virtually always we all agreed that always may be a problem but at least more than sometimes doesn't say important features for the present invention is that it sometimes reaches. I mean you would have us put in the term sometimes and I don't think that's a fair reading of what the sentence says. I wouldn't have the court put anything into the claim or into the specification. The specification says it's a goal to get within that temperature range it doesn't say how often well it says it's a it doesn't say I don't think it uses the word goal here it says a feature there's a difference between a goal and a feature a feature is something that it does a goal it's something that it strives to do. This statement is talking about what it does not what it strives to do right

. And this court reversed and said that the scope of patent claims can either be broad or narrowed based upon abstract policy considerations. But we've got more than abstract policy here we've got a specification and fairness to the other side they're not relying on policy arguments they're pointing us to part portions of the specification including if you look at column 4 lines 54 through 60 they talk about not a policy goal of the invention but an important feature of the present invention is that lumbablaw the gas reaches the patient within two percent. So we're bound by the spec as well and this doesn't I don't think the import of this statement is sometimes I think this says it's important to the invention that the gas reached the patient within a predetermined temperature. It was also true in Smith Klein that there were statements in the specification that one purpose of the invention. Moving aside Smith Klein for a moment. Why can't we fear we read this as being that this is what virtually always we all agreed that always may be a problem but at least more than sometimes doesn't say important features for the present invention is that it sometimes reaches. I mean you would have us put in the term sometimes and I don't think that's a fair reading of what the sentence says. I wouldn't have the court put anything into the claim or into the specification. The specification says it's a goal to get within that temperature range it doesn't say how often well it says it's a it doesn't say I don't think it uses the word goal here it says a feature there's a difference between a goal and a feature a feature is something that it does a goal it's something that it strives to do. This statement is talking about what it does not what it strives to do right. I think it's talking about what it strives to do it's talking about a goal or an objective there's several statements in the specification that it's a goal or objective. So suppose suppose there's a one hour operation okay and for 15 seconds of the operation or flipping the facts here. Well 15 seconds of the operation it's within the range. Is that in French? In the rest of the time it's outside the range. Is that in French? Yeah under this court's precedent it would in French because there is no time limitation in the in the claim and though that is your honor's question that's their hypothetical and that's precisely the analysis in Smith Klein Beachham. This court said in Smith Klein Beachham this court has repeatedly stated that a court must construe claims without considering the implications of covering a particular product or process and that's- Would we be achieving the objective of the invention at all in that circumstance? Could you argue to us that they have really practiced the invention if they have failed to practice the invention 99% of the time? The invention is more than the temperature range. The invention is delivering heated and humidified gas with a heater and humidifier within about 10 inches of the patient immediately adjacent to the patient. Yes and within a temperature range and if they have failed consistently to do that 99% of the time can you argue to me that they have achieved what was invented? Well if if it has no effect on the patient they wouldn't achieve what's invented but there's no requirement that a claim has to be construed to achieve all of the objectives that are set forth in the specification. Well I would also think that maybe so tell me if you agree that one of the responses to Judge Dykes' question might be that if you look at the invention I mean they have to meet all of these limitations and it seems to me if somebody is infringing they also have to have this way of sensing that the temperature is not in the predetermined and doing something to fix it so that is that practical matter we're not talking there's no way that somebody that does it 1% of the time is I can foresee is a practical matter is going to meet all of the limit that system is going to meet all that method is going to meet the other limitations because the other limitations consist of fixing it if it doesn't yet yes you're am I right about that? Yes Your Honor and the second practical matter here and it is that the answer to his question is no that would not in French because you'd fail under paragraph C you would not have compensated to get it back within the range right? It may be possible that you that you satisfy C and don't satisfy E but as as a practical matter these are devices approved by the FDA I don't think there's any practical we're not talking about practical matter we're talking about what infringes here and it seems to me like in Judge Dykes hypothetical there would not be infringement because you would have failed either to stay within the temperature range or to compensate under paragraph C to get it within the temperature range. It's possible that that you could fail C or you could fail C or E and that seems to me that part of the tension here seems to be with the choice between always and sometimes but not always

. Do you think fearily one ought to a fear of construction would be something between that that you do it substantially all of the time but not I mean that seems to be what we're struggling with okay what I can do the answer is the answer is no and I think the second case I was going to to mention the northern teleconv versus Samsung electronics case at 215 F312 81 answers that question that was a method of semiconductor processing the invention was using a way to remove aluminum off the surface of a silicon wafer and Samsung argued on appeal that the court should read in a quantity limitation as to how much aluminum should be etched and this court said there is no quantity limitation in the claim and even though the goal of the invention was to make very thin lines of aluminum when etching the silicon wafer the prior art it was fat and now you wanted to make these lines thinner so you could make smaller semiconductor devices even though that was the goal of the invention there was no quantity limitation in the claim and Samsung said well that's absurd that would mean trace amounts of aluminum would infringe and this court nevertheless said it would be improper to read a quantity limitation in the claim did that claim did that case also include language in the specification that talks about not the goals of the invention but the important features of the present invention that that case did not but certainly the Rambus versus Infinion case which we cite in our brief had language about important features of the present invention but there was contrary language elsewhere in the specification well where's the contrary language in the specification to this provision that I cited to you in column four where's the contrary language well the the footnote to column 11 and that we that we've already discussed there's also language in column nine starting in about line 47 which we cite in our brief and there's also language at column nine line 28 which says that this is so just to be clear the line line nine is the lag time in milliseconds for Samsung right well it go it I think you need to go all the way down to line 55 this is this is talking about there being a lag time for sensing that that's that that's beneficial to have a fast one but then it says the first 12 to 15 CCs of gas leaving the apparatus after it's activated are cooler than the predetermined temperature okay but that language also is talking about changes as a result of activation or change in flow rate right that's that's that's true that's true the the passage up further up in column nine says that you maintain that the desire temperature at least within about two degrees c of it so that's an acknowledgement that the temperature may sometimes be outside the the two degree range as well where's that line what that was 29 column nine line 29 maybe 28 says well still maintain at the desired temperature or at least within about two degrees c of it and preferably preferably within about 0.5 degrees c so these are discussions of the of the preferred embodiments we have the examples that are below the table in column 11 those are not statements about what the invention is the claim here does not have a time limitation in it it just has a temperature range limitation in it under this court's decisions in bell Smith Klein and Northern Telecom it would be inappropriate to read a time limitation into the claim unless the court has further questions I'll yield the rest well I'll have to make sure Willie that you have three minutes thank you runners thank you for the time looking back at column nine line 50 where the specification refers to milliseconds and comparing that to the amount of time that dr bourbon found that the north gate device might have been within the four degree range which was 15 seconds that's thousands of times greater than the milliseconds described within the patent even if you accept that the startup time and change of rate flow is within the scope of the claim and so the 15 seconds is thousands of times greater than the milliseconds that the patent anticipates and conclusion if you look at the district court's decision the district court failed to find facts upon which to base its decision and under that scenario you can remand no predetermined temperature was found no reliance on which bourbons test to use and no decision on whether bourbons new declaration was proper but even with all those new facts most of those can be resolved in favor of north gate and in that situation you can reverse because even if we assume a 37 degree predetermined temperature none of bourbons test data either original or altered shows that the human flow maintains a four degree range for an endoscopic procedure under this scenario reversal is proper with an instruction to enter judgment of non-infringement no more questions thank you thank you thank you you know I'm going to award versus the Postal Service yo