in construing the claims. Vitronics, 90 F.3d at 1582. As with the specification, however, “[although the prosecution history can and should be used to understand the language used in the claims, it too cannot ‘enlarge, diminish, or vary’ the limitations in the claims.” Markman, 52 F.3d at 980 (quoting Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 227, 12 Otto 222, 26 L.Ed. 149 (1880)). If a patentee takes a position before the PTO, such that a “competitor would reasonably believe that the applicant had surrendered the relevant subject matter,” the patentee may be barred from asserting an inconsistent position on claim construction. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1457 (Fed.Cir.1998); see also Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.Cir.1996) (<HOLDING>). If a patentee distinguishes a reference on
holding that dss was estopped to argue that the respondent mother was competent to surrender her children when dss had previously argued that she was so mentally ill that she could not care for her children holding party was estopped by silence holding appellant produced no evidence that when she made her complaints to management she ever mentioned that she felt she was being treated unfairly due to her race or sex holding that patentee was estopped from arguing that her perforation means encompassed ultrasonic bonded seams after she distinguished references that contained such seams holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination