effectively an ordered arrangement of ingredients is inconsistent with first the patent and prosecution history second testimony of skilled artists and i'm uniformity and third testimony that it was literally impossible to achieve so when your complaint is that he relied on his naked eye issue that at all or just he shouldn't have relied solely on this because invention from a specific prior art reservoir structure it did not distinguish pyro fields with visible specks and bugs and indeed in prosecuting the parent application  appendix twenty one forty six the patent the said pantie said if the components are quote dispersed the result in the matrix structure the resulting structure is quote understood by home today examples in a places discuss homage in a homogeneous mixtures and i want to take the court to appendix one hundred and example one because understand example what to require him to line up evenly all the multiple except beings and make sure there are no randomly appearing dots throughout the mixture in the blender and then the pattern further teache the court found that that was not enough and you invited the court to basically eyeball the appeal and to determine when there was uniform or not right and that's one form of relevant evidence but my point here is that home satisfied by a dispersion not perfect or even dispersion and that the skilled artist and so testified dr davis testified to this understanding at appendix two sixty five line fourteen similar sense of uniformity he testified in observing the broken tablets with us maybe that and this is appendix two seventy nine line twenty two then quote i didn't see any pockets of experience and quote it appeared to be uniform and color and then on the next page slide fourteen he testified that he did not observe any non uniform distribution in the boat that have been quoted all the same to me and so skilled artist it's like doesn't that mean to the extent that you're talking about claim construction doesn't the material that you were just quoting rather support what judge you have started that is appendix two ninety two line twenty two that it is quote physically impossible to achieve a uniform mixture in a multi particulate system and the district court embraced this absolut targets achieving the best possible mixture of the beats with the powder and preventing segregation it does not target a uniform composition so this conception of sizes and so he would say that's a standard characteristic of a multi particular system and the pattern clearly covers multiple multiple sized particles you see a column forty five how many particles they have and indeed this acceptance to a homogeneous dispersion and mix again with more experience in tablets if you were to bisect an example to fill the granules which are more than twice the size of dr davis his testimony from the photographs if you look at the color photographs at appendix fifteen seventy nine to fifteen eighteen in particular fifteen anyone has activists you can see the visible yellow seventy nine to fifteen eighty you can see the bumps and holes and so everything is visible there that the district court described so the district court couldn't just throw out this testimony based on theoretical deviation between a pill and a photograph he had to find that the that was apparent in the photographs that dr davis saw did not reflect the essential structures that he saw the actual bill otherwise he can't just throw out the testimony of a skilled artisan that and this is also why they could i test is not the proper test because life i mean you're not answering my question look at look at separ not on explain that to me because you invited the court right and you made certain statements there yes clearly segregated you know pocket of exhibits which is a defacto structure then you don't have uniformity that's all he's saying he's not saying the that any yellow flex any minute variation because that's against the testimony of especially in light of the opposition that council took this morning that this really is a case about the findings made by the district court and not a question about on how to construe the claims the district court found as a matter of fact reviewing all the evidence submitted in the top half of the case that the activists and elton products do not infringe because they do not contain a uniform distribution of all the ingredients they do not they are not a uniform composition i and that's the construction the plaintiffs urged that's the construction of the district court applied throughout the case so i thought i'd like if i can to begin can i assume something that confused me a little bit when when the district court was making those findings and using the notion of uniformity i guess i was thinking that might mean either of two different things one is you know looks like single color single color paint  it might also mean you can see flex but the flex are really quite evenly distributed across the surface that you're looking at so you know and but any given than a dispute about what the meaning of uniformity is because even if you thought the meaning of uniformity in a compass a you had a uniform distribution of raisin bread in which the raisins are all perfectly spaced apart from one another that's not what the district court found here and we wouldn't agree with that construction either but the court doesn't even need to reach that to affirm the findings made by the just and i trust you think that mr compared to arguments are really directed to stronger view of uniformity that it has to be a single color in which you go anywhere oddly the surface you're looking at see variations i do take mr canary to be saying that there can be very there can be visible variations as long as there is i think what he described as a uniform distribution or the other phrase that i've heard him use was some degree of uniformity vote that's not how you read either the construction or the patent that uniformity throughout is the norah a uniform structure that would be enough under think any even under a some degree of uniformity structure we also don't think that some degree of uniformity is an accurate representation of what it means to have a uniform structure throughout i suppose if you zoom far enough out everything is uniform to  a plane then by definition there is not homogeneity of the three dimensional the view also that's exactly right you could take a cross section of a little phrase and bread and not see any raisins along the plane that you've chosen to  particles remain one millimeter or might be i stopped that the patent doesn't say that there's nothing in the record about that about that that the particles remain one millimeter as they go through this process but of course the final step is compression none of that is in the patent but in any event example two is not the formulation that the defendants are using here so even even if it formulation that looks like example to result in a macro stop we homogeneous it started from that that even if you thought that the photos don't depict any of this uniform reading that that doesn't tell you that when you open a tablet and look at it that there will be no distinct forty visible with the naked  actual tablets themselves so these certainly are photographs showing the temple the tablets or tablets like the ones that the defense experts looked at but it does it does not follow that even if dr davis looked at them and said i don't see any washed out here white areas and the shadows that result from the on even lighting and that in that photo that's exactly what the district court said that factors like lighting or reasons why he doesn't think that the photographs are the best that would also we flew to fact present scale but the that portion of the blend those are dissolved in solution and the amount of active ingredient is measured it doesn't tell you anything at all about how the acceptance or the active or distributed within a particular tablet so for example we all know that a reservoir tell with a reservoir it would not infringe that's conceded you know that's not the other side says that was the purpose of adding was this limitation but a tablet with a reservoir it would rip would come out exactly the same way for blend in content uniformity testing because it would have the same amount of active ingredient in it it just would have it arranged in a different way so that doesn't tell you anything about the arrangement within a particular shabbat but the other side is chosen to claim the arrangement within the particular tablet core as the key limitations which is also what dr davis relied on in saying i can tell that because of blending content uniformity there is actually uniformity of exhibit he's relying on a sense that if you look at it it's clearly talking only about the active ingredient because the executive summary hasn't said one word about then i think that the concession is that if the less of then is distributed in an even way throughout the tablet at a scale that is visible to the naked eye that would not of french and i think that the district court proceeded to find that the yellow dot that he could see the yellow dots that the yellow dots corresponded to less at then i in the activist product and that therefore the actress product it got it for you why do you think that's not dispositive of what we think it dispositive we think that the concession about the construction and we can see that those yellow dots are less than we also don't think that there's any other conclusion that the district court could reach here and again i just want to i see that over my time but just one sentence to sum up which is that in order for them to reverse partial findings by the district court based on all of this record they have to they have to convince this court that the only finding the district court could have made on the record so far was a finding of infringement and not infringement in other words of the non infringement under either a scale limitation or an actual visual observation standard there is no competent evidence that alpha gins product is of uniform structure throughout judge starr properly found that alger does not even have a goal observable and can be seen with the guy in the product now the claim construction calls for uniforms for throughout and we believe that means that it's the same structure throughout so enough of the product where you can see tablets automatic scopic scale and one heart and power structure throughout the summer macroscopic observable part that's just not uniform it's not the same can i ask you did is did the district court make for your product t lack of uniformity i'm sorry that was found by the district court as you can't see any different colors anywhere and or whether it was merely that even though you might see some different colors those specs were really quite evenly distributed and as the activists the sentence with the footnote seven call appears in fact to say that the judge found that as well so that any visible fle were themselves not evenly distributed did the judge make the same finding for your problem yes the judge found that the the holes in bombs were not evenly distributed throughout the  and they're not even uniform with the power structure that we think that the judge properly rejected plaintiff's remaining evidence the blending content uniformity dr davis admitted this has nothing to do with the arrangement of drug in the tablet and in fact with content uniformly said it doesn't tell you how the beads are linked to the finished product the photographs also we think that here they're good enough certainly be at a level that can be seen at the naked eye the still the same amount of detail because low resolution can hide the details that would otherwise be visible and of course we heard dr davis admitted he can draw that link i see  compression will destroy these granules these greg will say are the three experience that are controlling the release they can't be destroyed and furthermore all the testimony is the only thing compression does is is to preserve the segregation of the just go right to the testimony or the council statements and for fifty five he never says evenly distributed that was a misstatement by my colleague he just says if they're not distributed uniformly there which is not the  course so it begs the question of what is uniformity and that's where the district court went to arrive you had nothing from them about how you how uniformity was understood in the past and in the prosecution history and in the art it doesn't mean flux of color in that in that it refers to the uniform structure as some variation in flex of color and i think it is variation in color that he was relying on that the fact that there was just a different color he wants there to be an