district court judge relied on it that the changes made by willy were for this provision in the m p e p that deals with trademarks or trade names being given isn't that all over the prosecution olenka and that appears twice why isn't that clear definition a language that identifies a limp regardless of what may have been done or said in the european application for purposes of the us application in the us prosecution why doesn't that establish that we now know exactly what a limp that is for all purposes relevant to this patent several several responses that your honor st off there's no improperly used the trade name in the claim it replaced it with m attracted by sodium which is the generic name for the identical thing mr pearl i have let me just interrupt you briefly because your friends response among his responses that i understood to my question about that was that well you said without prejudice and that somehow meant that you would be serving the right to do except except right you have a comment about explaining this without prejudice thing saying without prejudice just means well we're not saying we agree with you but we're doing it anyway and so if you look to why did we do it that is what the file indicates as to why we do it why we did it and that is tangential and the evidence to get back to something mr recode said about the specification and about column four in the definition of anti folate and it's being focused on the active form if you look at column for what it makes clear is that not expert said or what we've previously said it's important to remember that the context of that discussion in the hospital case was something entirely different the issue in that case was how did the applicant distinguish the prior art and it was distinguish based on the identity of the active and the foley and that was the context in which this definition came up it has nothing to do with the issue in this case and the other thing i will point out is that the entire premise of the hospital is a sin for the court from last year where by the way this court twice noted that the original claims we're talking about here were limited to penetrated by sodium the entire premise was that we had nature of how we've preliminary amendment works all of these let me make sure i understand what you just said mr parmenter did you say that you actually narrowed the claims when you went from a error which the examiner noted the more important point is that that amendment have nothing to do with the issue in this case that amendment this about the issue in the  saying that colloquially because it doesn't really matter what the particular cat hind is that the colloquially this is referred to as either wondering what your position is with respect to those are they simply romance or are they kind of a loose characterization of the portion of the compound that really matters it limp must necessarily number there is frankly not clear answer in the record about what the right answer is that code was used in the prior art and by lily to refer to both the have attracted by sodium and to have a d per se but the point here is that whether or not that term or m c a has been used to refer to either substance a limp is the trade name for an actual product as die sodium just as a limp and it is undisputed that in the clinical trials where m t a is discussed their own expert admitted the person of ordinary skill would know that the only substance ever given to human patients was pem attracted by sodium and so that has to be what means in that context and let me just say something more broadly about the literature the judge bryson brought up it's important to remember that the authors of these papers were not engaged in the some tell music dissection of the terminology that we are in gauged in in this case they were talking about a new and exciting chemotherapy drug and when they talk about the word pema trek food sometimes they put parenthesis that's because the only way anywhere in the world any doctor could find a product that has had a track that in a defamer interest is with b to look to a limp it doesn't change what the olympics are product is it of that makes any difference look to the intrinsic record or the specification is clear that a limp and democrats advice sodium are meant to be the same thing and the examiner three times in the very office action that we are focused on here that which is also clear from the specification that a limp to mean how matric to die so i want to say a quick word about the european application because it's actually supportive of our position not apathetic cozy says that the examiner in europe objected to the use of the word a limp and we replaced that word with m attractive but that isn't the entire story st of all we did not say that we were what the european attorney said is that having disclosed how matric to die sodium under european law he felt he should be entitled to claim them a trick that per say that under european law that would be a sufficient disclosure and face that issue has nothing to do with any issue in this country or in this case the next thing that happened though is that the examiner said no you don't have that base you've disclosed a limp and  the question for whether there was a narrowing is something that this court looked at as of today and said looking back objectively was there and now the question on tangents geology is what actually happened after the time in the f history and what can we glean from the objective review of that file as to what the rationale was at the time for the men and this file history makes crystal clear that the reason for this amendment was to remove the trade name from the claim and to move that rejection there was no substantive issue with the scope of this claim have attracted by sodium was known in the prior art and if this court pointed out in  amendments if carry forward it is the same reason carry forward again and this court in every tension geology case faces preliminary amendments where all the action has happened in the past and the same amendment to carry forward and what mr their trade name theory in the november two thousand and five minutes somehow automatically carries over to the other two amendments the law is when you don't give a rationale that science science cannot rebut the festal presumption of surrender and on