was added late no prosecution a tortured prosecution that took five plus years and that particular amendment which came based on the examiner asking that that be done to issue the patent set in motion effect on the basic and novel properties of the invention which is required with respect to that transitional phrase apply the test that was in comprehensible and found infringement despite the fact that the evidence it was presented did not address directly course of a good five years we get finally to a request for continued examination where specific amounts of monomers are added into the claims of this is after a number of rejections of the claims on both one of two and one of three grounds and specific pieces of prior art that the examiner found to anticipate or render obvious the claims that then results in june of two thousand and nine in this examiners amendment where this phrase consisting essentially of is brought into the cases on this of course does come up a lot the proper legal test is then for the plaintiff to prove infringement they have to do what they normally do and that is to prove all of the elements of the claim are president but they have an additional burden they also have to prove that unclaimed application of the material effect test the evidence did not show procedure can did not carry its burden to show that the vinyl acetate which is an unclaimed ingredient in the activist accused product does not have a material effect on the basic not a property that's correct there were three basic knowledge properties as our grief show we focused on one and that is what the court called the increased transdermal delivery of greenwich ron that's the active drug that's in the patch  over a quarter of this particular coat that he's of is this unclaimed component vinyl acetate so the issue then for the district court and the burden on procedure can was to prove that twenty six five percent vinyl acetate in the activist not be a material fact if a person of skill in new york would make a patch that works for this it's run it doesn't seem to be a material effect the court didn't cite any case law for that light soley on doctor and swore he was the expert that made that particular statement but then through that lens determined that based on the evidence presented by procedure can there wasn't for enjoyment and that evidence was insufficient simply insufficient basically two pieces of evidence  what this table shows is with respect to those four he says different permutation levels that were tested at different time intervals from three hours to forty eight hours the table though as the evidence also showed based on what was also entered in evidence the tech products selection guide this is that the appendix page two thousand seven hundred and sixteen tells you what's in each of these particular and he says this is a guy that was used by people who are formulating it he says with respect to  vest at least based on the information presented here is that while acetate seems to be increasing permeation if anything now there's different levels of permeation depending on which of the it he said you look at and there's different functional groups and the court focused on that going to work similarly to the same couso branded product but that being said the evidence here again shows for all four of the not the same q so at the top of the table but the other four it he says that were tested and that are reported is what i call the factor increasing permeation did not address specifically vinyl acetate what we do know is both in this table from the activists and in that we know the quantity of vinyl acetate only in the and eighty seven it was never any evidence presented in the district court of the quantity of vinyl acetate in any of these other dramatic products so we know your attack specifically with respect to certain formulations of it either do or don't have say that based on that despite the fact that there's differences in vinyl acetate and unknown we have no proof or evidence of the relative amounts of vinyl acetate these were relations that there is infringement  well if i tried to do what was suggested and that is the acrylic adhesive in the activist product with final acetate and went out via last it figure out if the vinyl acid in the product is having a material activists in a number of ways for not presenting affirmative evidence that there was not or that there was a material effect from vinyl acetate specifically criticizing the activists looked at the patent they looked at the testing in the patent they looked at the testing in activists is and and the courts and we met our burden and we showed that this testing and the activist testing and what the prior art says and what the patent says about the function of vinyl acetate and what buying lassitude is used for and how it reacts and the court said our witness credible their witness is not credible it's the same evidence there's no requirement for testing martek tells us there's no requirement here for testing the question is did we meet our burden to show by a preponderance of evidence that vinyl acetate doesn't have a material effect on the basic in all the properties i don't have it in front of me but there is that sentence from the expert that  was read before which is extremely difficult for me to understand what it even and yet the district court really lot seems to have relied on  box a group's one hundred vinyl acetate and one didn't and he said neither one of those are acceptable because you could not based on the patent in the teachings of the patent you could not make a patch of reasonable size based on that  only one you could make a patch of a reasonable size was of two to eighty seven and that makes sense because the patent tells you it a p p x one hundred and ninety three dollars that the object of the invention is to reduce the size of the patch necessary to achieve it tells you exactly what the size needs to be we claim between ten dollars ten cents centimeter square so the definition was put there based on the information of the patent and the court said it went on rebut and accepted that definition and so that's a finding of fact that the court is obviously given deference to so that's where the definition came from there were many other sites in the  what's doing all of the ability for this flux to come out quick enough to make a reasonably sized fat hatch the vinyl acetate is inert it's nonreactive the teaching in the patent is that and it teaches you that it should be between for a permeation hansard as the court may be aware when you're having a train's dermal delivery sometimes you need to use a permeation hands or because you can't get enough plugs out and there are a lot of downsides with permeation and hansard as it gets rashes on your skin and things like that so one of the things that the inventors found was that it the flux with the hydroxyl group was sufficient to make a reasonable size even though the prior taught away from it and and as mr hood said earlier there were four different pieces tested and of the four different he says test it notably if you look at table one at a see which functional group they have but you also see whether they have final acetate or not and you'll see that the what dr is he compared he looked at all of them and he said well when you look at the two that have the car box a group with one having vinyl acetate and one not that would be to a fifty two dollars and to a fifty three dollars again he said you look at three  six hours because when you look at the hydroxyl two dollars to eighty seven dollars most of the drug is gone it twelve hours so the others will be just catching up and that's what the patent teaches us as well in column eight but when you look at those two neither one of them are acceptable because you can't make a reasonably sized patch out of that so with one having vinyl acetate and the other one not clearly the vinyl acetate is not having a material effect on the and he said and then when you look at two to eighty seven you can see that you can make a reasonably sized patch from the hydroxyl group and then what the court said is that we had met  burden but then the court looked as we corrected the court through expert testimony to activists is own testing data and as this court is well aware and applicants test their product frequently so when you look at the testing that was done by activists at twenty seven to four you can see that they tested products here they tested the one they were going to use the excuse product indistinguishable from the branded product and that makes sense because they copied the branded product it's an exact duplicate so from that the court concluded that that evidence confirms what was in the t esting in the patent which showed that it was the functional group making the difference and vinyl acetate did not have a material effect on the basic and novel property of flux i would touch just a minute on the testing so the court found that the testing was not required and as this court knows martek has said that there is no absolute rule that testing is not required the testing is required i'm sorry the problem here is that the question is not this testing required or is testing not required the question is did we need another and the court found that the evidence we put forth we met arbor i believe that a p x forty four to fifty three we have met or heard of the interesting thing is that their expert dr tan relied on the same evidence to say we didn't need a bird and the briefs of activists say well it would be just as logical to go with dr tan's version than it would be to go with dr enforcer of the problem with that is the judge made that fact finding the judge found that dr tan was not credible  gave it little to no weight and he said he was going with the evidence presented ha to dr in score which was that these tests the testing in and the and the disclosure in the patent about the known properties of vinyl acetate as well as what the prior art taught about vinyl acetate we met our burden that vinyl acetate does not have a material effect on the basic and all the property of an increased penetration flux whatever you want to call it i just i don't know if mr hood has waived their argument with respect to the claim construction because if the court knows in their brief they said that the  consistent consisting essentially of means that it should be the basic in all the properties of the sub part of the adhesive and not of the invention as a whole i am presuming that they are since they didn't talk about it at all  they're either not going to press that or well i wouldn't necessarily make that assumption that different in minutes here and in choose what they think may be stronger arguments but i'm not sure what ok it is a way for thank you ok so i would say that under p g and e casteel they tell us that it's the invention as a whole you have to look for it because that makes sense because you're looking at what are the basic novel properties of the invention over the prior art the you even though i do seem to have read right that the law said you look at the invention as a whole and then the court did an analysis at the mark men of what is that invention and what are the basic and novel properties that's exactly what was done here this court followed a case deal looked at consent consisting essentially of in a sub part of the claim they looked at the invention as a whole which was the basic  properties related to wedding you're even though the consisting essentially of said aluminum that wasn't where the court was looking in terms of what were the basic and all the properties they were looking at the invention as a whole and that's what this court should do as well because it would not make sense to use a piece of something that was old as looking at the basic and all the properties so i see you have just over a minute i'll touch very briefly if the court has no other questions are actually stop thank you i just want to be clear you have not way was i correct in presuming that you would not wait you were correct your honor we have not but we did spend our time where we think this case really turns and that was the impression issue to your question earlier judge stole the claim construction issue at the end of the day and i think really matters the question here is the evidence presented at trial with respect to infringement what we did not have is evidence of the actual effect of the twenty six point five percent by the last act of the santa product and the case this court test or was that somehow uniquely in there  sometimes these arguments are successful and sometimes they're not when there's a kind of game of chicken going on and correct our lives in the absence of it to test understood it understood and  a the material effect tested later on or had asked about that and that it went under a budget that did not exactly go unreported that's what the court said what dr t n did however he testified about what he change to the physical and chemical properties of the patch and again he was a formulated as formulating his dura tech and he says and he's saying look if you're going to add something into this that is going to change the physical and chemical properties of the patch by either permutation levels you're going to have a material effect dr in school or asked by the district court can you quantify what would be sufficient to be a material effect five percent ten percent you didn't answer that question you came back with the standard that it's a large enough