view that turns on with a one sentence or more specifically half of one sentence in the prosecution of the application that led to the seven hundred and seven fattened can fairly be read to be an independent  of so what is going on in this prosecution there are two rejections and two responses to the rejections this is the st of the two responses what is going on is the examiner has said i see the  obvious to pick from that list of eight sorts able to pick and use those and in that case i have your invention and the a fair reading of what is everything that's going on in this prosecution is the the applicant is coming back and saying if the st part is true all features no combinations the nd part is necessarily true also and when we go on and we drop down seems to me like you would have a stronger argument if you were distinguishing holds just because it only it didn't say used to and yours used to and this were just exemplary and your claims did it have a specific combination but she went on and not just use those examples  in the prosecution history as examples you put those three specific combinations in the claims and so when you read that in combination with saying we know wh right to read it the prosecution here and say we're distinguishing overholt because not only do we use to we use these three specific stories of two i think the reason the reason why that a fair reading of why did these three get put into the claims is going back to the parent application was a restriction requirement where the patent office calls out five pairs of claims and says you got to pick one restricting this they pick one of different one citrate phosphate and prosecute that parrot that says we reserve our rights to present it to present claims to specific species if a generic claim is found allowed and was a generic claim presented or found a lot of generic claim was never presented and those never found allowable in the parent it's a genus and they presented it here presumably saying as the panel is going to issue another restriction requirement and we have to break this into three parts that didn't happen and then they they continued prosecuting this small not disclose combinations so after the sentence that everyone focuses on two sentences later it says the claim subject matter is directed to the use of combinations of sorts that increase the dynamic of pasty of their color there is no description or suggest what i'm are you saying that these two arguments go together and therefore they stumble doesn't apply because it's not a separate reason for distinguishing the i there are two reasons why i'm different from holtz fairly read this prosecution and you've got to look at i think opposing certainly at this entire response to an office action and we would submit also what happened there off that fairly read the the sentence you're relying then there's the sentence you're focusing on and then i'm peach a warning eighty three at the end of the st paragraph it says use of this particular combination of salt greatly improves the cost effective of an example and what they're doing is saying in the end this is i think what the district the chief just that district judge found in the footnote in the opinion of saying that invents a declaration cannot fairly be read in the way that the the magistrate judge would read it in the report and recommendation but what what the inventor is what she is saying there is here's an example of a particular combination that results in dramatic savings but it is merely an particular combination she's referring to is thing from going to give an example it is necessarily a specific combination and so that's what we would say a fair reading of this particularly if you and that what the argument that is being made as we discovered that when you use a pair of swords you properly selected you get a dramatic improvement in dynamic capacity that is  we did discover that these three pairs uniquely do that we discover that pairs of sorts probably selected do that and that's why that the case was allowed then you go on to to say that this particular use of  talking there about improving i think you are that's a specific example that is being offered if you will as proof of unexpected results and this is precisely the point that in the district court opinion in a footnote it says the magistrate judge read this in the way that your honor is positing but i the district court judge do not a nd sort to the tradition that process doesn't produce our invention but the district court disregards the immediately following sentence that explains why that is which indicate which say's it's similar things few times during prosecution like that sentence are nearly identical we were that sentence sentences are repeated on a number of occasions and prosecution but i think i mean that's i think that's ultimately the the single best piece of evidence we have necessary to determine what combinations of salts would increase them past which i think presupposes here that you know the intent of concept here is that they discovered that these particular combinations work only would make sense to emphasize the lengthy development path to determine what question well i mean i i'm just saying that you're talking about the lengthy develop and pass but i don't know that that's limited to just a cup proposed the pairs the combinations that are claimed it also would include those that are  disclosed in the specification what new well that's true there was a lengthy development path to determine that the salts in the specification work but those are the ones that are in the claim i think it's notable and i don't mean to jump between arguments but the examiner indicated earlier in the prosecution that the only ultimately i'm going made that statement it's not a very long argument the examiner and presumably engine very sophisticated patent he chose its words carefully amgen said that the particular combination of salt with the word particular i tallis sides is not disclosed by  think that the public has a right to rely on that and amgen could have walked that back in its final amendment it certainly didn't do that and so i think that you know regardless of whether the examiner align or not i think that amgen ultimately has the obligation to make a clear record i do you think it would have had to do to walk that back in even if we think that in their own even if i think that in their nd response they don't make a strong of an argument what would they have had to do to undo strong argument  they made in their st response i think they would have just had to say that our you know our clinton reclaim is not limited to the particular combinations of salt's or simply say we withdraw the statement that we're just in wishing the prior art on the basis that it just does not disclose the particular combination of salt a particular allisons this case often a score that says once you make a statement from prosecution it's clear as the one on page one hundred and two you've got to withdraw just as clearly rather than just leaving it in the record i think that's actually particularly important here because although i don't think we need to show the alliance i think there actually is fairly abundant evidence in the record that that statement was necessary to get a patent it wasn't sufficient in the sense that there was this rejection and all of argument but it might have been necessary and i think that the enablement rejection earlier in prosecution which is on page  claim and only prosecutes claims with respect to those four combinations one was issued as part of the parent pattern and then the other three were issued as part of the patent we're talking about this morning and so i think that if you have been forthright and said no we're not limiting our claim to these particular dedication down and the court doesn't need to reach this question if the court affirms on the basis of the argument basis thoughtful it's a completely independent argument for a firm and but if i'll just say one word about it i think that the disclosure does dedicate this all this  the claim had there been forthright but now when we just look at the specification it does it does name the two salts that we're talking about in that list so it's not as though they're just generic salts they just happen to be so combination of accused and that would have fallen within the original language of the claims but amgen narrative claims from prosecution to just these particular combinations and so that's i think it is the classic case re have the specification broader than what's cl let me talk about the idea the suggestion that engine should have walked back that language always drawn it how would that have been possible if engine is saying cults doesn't disclose any combinations it's hardly going to say but it does that a generic disclosure is not enough and san disk which is the most recent presidential decision of this court will disclosure dedications as the mere fact that a skilled person could take the teaching and arrive at the