if you look at the intrinsic abit evidence as we told the district court which was not part of the summary judgment most of what we told the district court when you look at the intrinsic evidence optical purity means the cut the sample is has no  related to a process claim and the compound patent referred to the process patent and in the process patent he said the limit of the touching was there a point was a point zero five percent by weight and that is what optical purity means that's what we argued to the district  refer to the process to interpret optical purity and not to refer to the process in terms of its its necessity in the invention reinard the process you can make  way if you had your products you could purify it using h d l c that's all that statement says it doesn't say it does it or by the way the only way you can come up with your product is by using h p l c and in fact this is confirmed by the by the notice that everything if you agree with us that the claim should not be limited to a scale c then the district corps will have to decide whether or not optically purity means our definition which is ninety nine point nine five percent pure or some of the other defendants are arguing that it means absolutely it's not prior our process it's a postmark process so will someone else came up with later after the fact i don't think this particular problem but even if it was ninety nine point six nine which i think is the precise number even if that is the prior are we still by a process it just means that you can come up with improvements and ways of making it later and i would argue and if you do argue that in fact that's what happened here to the inventors intended to compound they were the first to discover this up your product was a very important product none of process for making ninety nine point nine nine percent optically peer when they then be able to get a composition claim to be more up to clean pure composition no because our claims would cover all the way up to a hundred percent because first of all the inventors repeat the kid on a process and it only got ninety five ninety percent pure in fact one of the defendants in this case did the same thing and they only got about ninety five percent or so good on it doesn't inherently result in the claimed invention in fact  and then you want us to construe it or someone to construe it at some point to include ninety nine point nine five because you say that that's the only way to determine it to detect it and that detection for one hundred percent have to allow application on the same time and that the h p l c method in both specifications is essentially the same description as about the h b o c itself so the point would be well what they said in the one patent that this limit of the touchy issue exist the unwonted was below zero point five percent what that means is a little bit it may not be understandable to laymen but it would it would it's saying is that you could still have wanted ice for up to zero point five percent by weight because we can't detect it that's what this paragraph is directed to that's what it means so when we say a hundred percent what we really mean is one hundred percent but we everyone understands that because of the limits of the touching you can still have zero point zero five conventional method of making of solid plot he said it didn't work it won't produce optically pure material second they said when we discovered that problem with the conventional method we fixed it by adding an extra h p l c stuff which they made clear was essential were required to get optically pure material where it is it's essential or required in a number of places or other means starting with for instance the specifications we think under either the two i guess there's two things first in the prosecution history itself they use the term further steps beyond kidani were requirement to obtain i'm looking i'm assuming you're talking about appendix two six five two there's two cents at the end of the paragraph the spillover from the previous page right so i sort of started to sixty five  work the conventional method doesn't give you the bit for material that they say it is also not even and there's an excerpt but some of it is also not even obvious to one skilled in we are absent the teachings of the present i think that when you read we think that when you read this exchange they start off by saying the conventional method doesn't work it says and he pointed examples right above the only after statement but they point out the fact work we discovered that and that it was an invention to come up to determine that further steps were required beyond the dogs so they were saying in context we believe that h p l c was required but that coupled with these parents  c after h p l c pure what other possible point is similar to making with those tables in those experiments other than to show that the conventional method does not work by itself and how they're going to get this optically fair competition that they claim but that's all they wanted to do all they had to do is show it would look we've got we went through this process and you got your material but they didn't they were they were trying prove to something else they needed to prove to get a pattern that the conventional meant that didn't conventional method did not work and that's classic disclaimer i know i don't understand why years that they had to prove that conventional method didn't work they're arguing that the product was different the product was new and on obvious and that they discovered and claimed that the product of optical purity because your honor they had to admit because it's what everybody believed in kidani reports remember isolated it resulted in a different product and the product they resulted in after applying to appeal thing would remember but everybody believed they said it twice to the to the patent office once in the spec and once doing the prosecution is free they said folks believe that kidani produced in the prosecution history they were dealing with an obviousness issue as well they were saying it wouldn't work and they said it point blank a number of times the compound this is a come three sixty eight down to forty two the compound prepared by conventional method is a so they're saying the conventionally obtained material that's what they termed it the conventionally obtained material is not optically pure that's what they said throughout that's what they set out to prove and that's how they got their patent and we use the conventional  or more that it was necessary but here there's nothing that i can see that suggests that the h p l c process was required when you look at the entire context of both the stock in the prosecution that is exactly what they're arguing they're saying the product prior our conventional method doesn't work therefore h p l c is required we use the conventional method we use precisely the conventional method as defined in the patent the patent defines the normal method of making this l c resolution in accordance with the present application in the prosecution history is a clear disclaimer and it does cite to the spec which we also believe has all of the disclaimer language that mr hurst referred to just as as a short cut will those quotes about the conventional method not working and h p l c working with citations to the seventy four pen or on pages twenty five twenty six of sanders brief there are eight of them so we agree that all of that language is limited and it also places the case squarely within andersen shinee all of the rest of them about ten cases that not only include a disclaimer but also as as judgment pointed out attribute the characteristic sanofi calls it a physical characteristic of optical purity to the h p l c process which would by itself require the lames the claims to be limited to see but it's also interesting that snowden's claim construction that that depends so heavily on the six forty two patent for this point zero five percent which really isn't point zero five percent it's less than two point zero five percent what the six forty two patent says is below zero point zero five percent so we know that we should be north of ninety nine point nine five but we don't know how much and we're told one hundred percent is not possible so we're somewhere south of one hundred percent but we don't know how much it's interesting that the the six forty two pa also says in three places that these isomers cannot that's a quote cannot be resolved with a traditional method or conventional method because they are too structurally similar so sano method patent and i can give the quote to the court those sites so there's no confusion about it it's a he won forty two at the abstract this is the six forty two pattern again a forty one forty four column two lines nine hundred twenty three a forty one forty five column three lines twenty five to twenty eight so now we have a clinton destruction from sanofi that reaches for less than two point five percent which is really now what they're saying that they want the full five point five percent from a plan that says you can't use a different method don't even try and that is very consistent which the age seventy five with the it's seventy four pattern which also in fairness says i think in an age place it's your complete resolution or your one hundred percent resolution is by h p l c so we think it is a very fair disclaimer case and to make the point zero five wouldn't come anyway but to take anything from that patent which says to us don't you know i've got another method to support or construction that says use any method you want it would be contrary to the would look at the words optically pure and know it doesn't matter hundred percent and it doesn't mean complete it means some process that is described in the patent specification we now know that that process is not going to give you one hundred percent because you know if he tells us one hundred percent isn't possible we are also told ninety nine point six nine is not good enough ninety nine point nine five for reasons that don't make sense that you want for that and what this establishes is that there is no definition of optically pure that is quantitative not on this record not on this intrinsic record and really not on the extrinsic record either the only definition is qualitative and through the method so this is not only a patent that says my characteristic that is so important to call purity is attributed to people see it is a claim term that depends  obtained by collecting h p l c fractions at the appropriate time that's all we know optical purity means that is collected at those fractions that optical purity in the meaning our understanding be ninety five percent depends on the context but that's the important thing is a person it is agreed a person of skill would look at the words optically pure and look for context and here are the only context is and it's these are snow peas experts words by collecting h p l c fractions at the appropriate time that's the only definition that would be true by this piece the process provide exactly the quantitative content it but in this case what these inventors really claimed was the purity that i get when i use this process it may be that they could have said well the dyson said ok i should be this fire from could  didn't they said the purity that i get is when i collect these h p l c fractions and they should be went to that now now especially when we're talking about the difference between ninety nine point six nine and nine point nine five to combat with people who say it's not possible to do that because we don't know how much less than one hundred percent it should be would not be right and it would be contrary to this record especially with the six forty two patent saying don't even try to use another one don't even try because  product and separate but you but you can resolve that that interview and that's what the dynas process was it didn't work didn't result in your product but nonetheless that was that i think that's a i want to make sure that that's clear on the record the other thing  is with regard to the to the minute that everyone is focused on today i think it's also important to look at what the examiner said after that event was filed he'll lot of the claims and when he'll end the notice of allow he obviously knew he could he was capable of doing that he understood the r he would have done the same thing but he did a will does that tell us that tells us that the examiner is understanding of the office action is consistent with the plaintiffs and the case law on the omega case in particular says if there is more than one reasonable explanation for the statements in the file history then that doesn't amount to a disclaimer i know this isn't really an issue on appeal but i just want to make believe in order to have been saying ninety nine point nine nine percent a lot this morning you know if if you agree with us that the process is should not be part of the claim invention that's an issue for the generic products are not on the market are quite you know desperately wants to get them off the market again and this is one of the steps having the decision in from this core and hopefully it's a fair ball favor once was is part of that process  all harm that we put into our state papers is not occurring the mana sales is dropping literally off the ledge so all of our misinterpret so if especially if we're going to get a favorable decision we would like one assumes possible so we can take further them on this one and that is just the court's resources if you want to give us a quick decision would be that be fine with us but all i'm saying is there's another step and that's the plan or injunction step that sanofi climb to take below they didn't ask for one below and as you'll see from the things